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FEDERAL  CRIMINAL  LAW 
AND  PROCEDURE 

Volume  One 


\. 


^ 


FEDERAL  CRIMHiA^ 
AND  PROCEDURE 


^4 


BY 

ELIJAH  N.   ZOLINE 

•II 

OF    THE    NEW   YORK    BAR,    MEMBER    OF    THE    BAR    OF    THE 

SUPREME    COURT    OF    THE    UNITED    STATES 

AUTHOR  OF  "FEDERAL  APPELLATE  JURISDICTION 

AND   procedure" 


WITH   AN   INTRODUCTION   BY 

HONORABLE   HENRY   WADE   ROGERS 

JUDGE    OF    THE    UNITED    STATES    CIRCUIT    COURT 
OF   APPEALS,   SECOND   CIRCUIT 


IN  THREE  VOLUMES 
VOLUME  ONE 


BOSTON 
LITTLE;  BROWN,  AND   COMPANY 

1921 


T 


Copyright,  1921, 
By  Little,  Bkown,  and  Company. 


All  rights  reserved 


Norbioati  yittta 

Set  up  and  electroiyped  by  J.  S.  Gushing  Co., 

Norwood,  Mass.,  U.S.A. 


3; 

5^ 


DEDICATED 
TO    THE    HONORABLE 

lEtitoarti  ©ouglass  SEjjite 

Cjjief  Justice  o£  tfje  Winittn  States 

WHOSE  JUDICIAL  OPINIONS,  STRONG  IN  REASON  AND 

LIBERAL  IN  PRINCIPLE,  HAVE  BEEN  A  SOURCE 

OF  INSPIRATION  TO  THE  AUTHOR  IN  THE 

DEVELOPMENT    OF    THIS   WORK 


INTRODUCTION 

Almost  fifty  years  ago  the  Law  School  of  Harvard  University, 
in  1872-73,  invited  Benjamin  R.  Curtis,  who  had  been  a  Justice 
of  the  Supreme  Court  of  the  United  States,  to  deliver  a  course  of 
lectures  before  its  students  on  the  Jurisdiction,  Practice  and 
Peculiar  Jurisprudence  of  the  Courts  of  the  United  States.  He 
began  that  course  of  lectures  by  saying  that  when  he  came  to 
the  bar,  forty  years  before,  there  were  comparatively  few  cases 
tried  in  the  courts  of  the  United  States.  The  practice,  he  said,  was 
then  in  the  hands  of  a  few  leaders  of  the  bar  in  the  great  cities 
or  the  large  towns  where  the  courts  were  held,  and  gentlemen 
of  the  bar  residing  elsewhere  did  not  trouble  themselves  to  acquire 
any  knowledge,  or  they  acquired  but  very  slight  knowledge,  con- 
cerning either  the  jurisdiction  or  practice  of  those  courts.  In 
truth  "  they  had  nothing  to  do  with  them  except,  perhaps,  in  some 
accidental  way."  He  then  proceeded  to  explain  that  because  of 
the  extension  of  the  powers  of  Congress  over  many  subjects  pre- 
viously left  to  the  exclusive  legislation  of  the  States,  and  for 
other  reasons  which  will  readily  suggest  themselves,  the  business 
of  the  courts  of  the  United  States  had  greatly  increased  and 
they  were  likely  in  the  future  to  operate  with  greater  efficiency. 
He  therefore  impressed  upon  the  students  that  if  they  neglected 
to  inform  themselves  concerning  the  peculiar  jurisprudence  of  the 
United  States  courts  they  would  disregard  important  means  of 
usefulness  and  success.  The  increase  in  the  amount  of  litigation 
in  the  courts  referred  to,  and  the  importance  of  that  litigation, 
have  advanced  in  the  years  that  have  passed  since  the  statement 
referred  to  was  made  and  in  far  greater  proportion  than  in  the 
period  between  1832  and  1872  to  which  Judge  Curtis  referred. 
That  this  would  be  so  he  predicted  and  the  facts  have  more  than 
justified  it.  The  prediction  has  been  fulfilled  both  as  respects 
the  civil  and  the  criminal  jurisdiction  of  the  courts. 


INTRODUCTION 

The  report  of  the  Attorney  General  of  the  United  States  for 
the  year  1919  shows  that  the  total  number  of  criminal  cases  of 
all  classes  commenced  under  the  direction  of  the  Criminal  Divi- 
sion of  the  Department  of  Justice  during  the  fiscal  year  was 
47,443.  The  number  of  acquittals  w^as  2000  and  the  number  of 
cases  dismissed  and  nol-prossed  amounted  to  7954.  The  total 
number  of  cases  arising  under  the  postal  laws  was  2092,  and 
the  number  of  convictions  was  1463.  The  number  of  criminal 
prosecutions  under  the  internal  revenue  laws,  including  illicit  dis- 
tilling cases,  amounted  to  5807,  and  the  convictions  were  2590. 
There  were  prosecutions  of  39  defendants  for  a  violation  of  the 
National  Banking  Laws,  resulting  in  a  conviction  of  32  and  an 
acquittal  of  7  persons.  The  Criminal  Division  is  the  Division 
of  the  Department  to  which  is  assigned  all  criminal  matters  arising 
under  Federal  laws  except  prosecutions  under  the  food  bill,  the 
anti-trust  act,  and  violations  of  the  war-time  prohibition  bill. 
It  advises  and  directs  the  criminal  work  of  the  several  United 
States  Attorneys.  The  records  of  the  Department  of  Justice 
show  that  the  number  of  criminal  cases  pending  in  the  circuit  and 
district  courts  of  the  United  States  at  the  end  of  the  year  1871 
was  5586,  and  that  the  number  of  criminal  cases  terminated  in 
said  courts  during  that  calendar  year  was  8187.  The  statistics 
for  1832  are  not  available  as  the  Department  of  Justice  was  not 
then  in  existence. 

The  Clerk  of  the  United  States  District  Court  for  the  Southern 
District  of  New  York,  Mr.  Alexander  Gilchrist,  Jr.,  informs  me 
that  in  1832  the  number  of  indictments  filed  in  that  court  was 
twelve,  in  1872  the  number  had  increased  to  131,  and  in  1919 
it  had  reached  1326  and  there  were  7572  Selective  Draft  Infor- 
mations. For  the  first  six  months  of  the  present  year  the  indict- 
ments filed  in  that  court  number  1236.  The  Southern  District 
does  not  include  the  whole  of  the  City  of  New  York.  In 
1805  the  I'^astern  District  of  New  York  was  created  and  since 
that  time  the  jurisdiction  of  the  District  Court  for  the  Southern 
Distrirt  has  not  included  the  Borough  of  Brooklyn  or  any  portion 
of  the  rity  ol"  New  York  lying  east  of  the  East  River.  The 
Jiurnber  of  criminal  cases  commenced  in  the  Eastern  District  of 
New  York  tlicn  was  eight  in  the  district   court   and    seven  in 


INTRODUCTION 

the  circuit  court.  During  the  year  1919,  as  I  am  informed 
by  the  Clerk  of  the  Court,  Mr.  Percy  B.  Gilkes,  there  were  295 
cases  in  that  Court.  These  figures  and  those  contained  in  the 
Attorney  General's  report  are  significant.  They  make  apparent 
the  great  importance  now  attaching  to  the  Federal  Criminal  Law 
and  Procedure.  This  importance  already  great  has  been  enhanced 
by  the  ratification  of  the  Eighteenth  Amendment,  and  by  the  enact- 
ment of  legislation  by  the  Congress  to  give  effect  to  its  provisions. 
Prior  to  the  publication  of  the  present  volumes  there  has  been 
no  adequate  work  on  Federal  Criminal  Law  and  Procedure. 
That  such  a  work  is  and  long  has  been  most  desirable  is  apparent. 
The  author  has  rendered  a  real  service  to  the  Federal  Bar  and 
Bench  by  wi-iting  a  work  on  this  subject.  His  very  considerable 
experience,  first  as  a  member  of  the  Bar  of  Chicago  and  later  as  a 
member  of  the  Bar  of  the  City  of  New  York,  especially  qualified 
bim  for  the  task  which  he  has  now  so  well  performed. 

The  annual  appropriations  made  at  the  2d  session  of  the  65th 
Congress,  1919,  amounted  to  $25,598,967,517.  The  amount 
appropriated  for  the  Navy  in  1919  was  $1,573,384,061.  The 
new  Indiana,  dreadnought  begun  in  1919,  is  to  cost,  completed, 
$22,000,000.  In  view  of  these  figures  the  fact  is  interesting 
that  the  cost  of  running  the  United  States  courts  for  the  fiscal 
year  ended  June  30,  1920,  amounted  to  only  $17,329,631.93.  The 
figures  include  expenses  in  Alaska,  Hawaii  and  Porto  Rico  as 
well  as  in  the  Continental  United  States.  These  expenditures 
were  distributed  as  follows : 

(A)  Departmental 

General  salaries  and  contingent  funds,  including  rent  and 

public  printing $    693,438.69 

District  attorneys,  regular  assistants  and  special  assistants    .  1,794,772.78 

Witnesses 1,171,817.75 

Special  legal  branches  of  departmental  work 331,260.11 

Investigation 2,467,499.76 

Maintenance  of  prisoners,  etc 2,302,235.67 

Public  works,  i.e.  construction  of  penal  institutions     .     .     .  546,589.19 

Not  specially  classified    ' 606,258.20 

Total $9,913,872.15 

vii 


INTRODUCTION 

(B)  United  States  Courts 

Supreme  Court  of  the  United  States $     187,196.94 

United  States  Court  of  Customs  Appeals 73,202.89 

Court  of  Claims 100,446.49 

District  of  Columbia  Courts 196,421.99 

Circuit  Courts  of  Appeals,  District  and  Territorial  Courts     .  6,086,221.98 

Total $6,643,490.29 

(C)  Special  Items 
Increase  of  Compensation,  Department  of  Justice  and  D.  C.      $    772,269.49 
Grand  Total $17,329,631.93 

The  Articles  of  Confederation  of  the  United  States  of  America 
did  not  create  an  independent  government,  and  did  not  estabhsh 
a  judicial  system.  They  failed  to  provide  either  a  Federal  Execu- 
tive or  a  Federal  Judiciary,  and  all  the  powers  of  government  were 
vested  in  a  one  chamber  assembly  in  which  each  state,  great  and 
small,  had  one  vote.  The  germ  of  a  judicial  system  is,  however, 
found  in  Article  IX.  That  Article  gave  to  the  Congress  the 
power  of  appointing  courts  for  the  trial  of  piracies  and  felonies 
committed  on  the  high  seas  and  establishing  courts  for  receiving 
and  determining  finally  appeals  in  all  cases  of  captives.  It  also 
provided  that  Congress  should  be  the  last  resort  on  appeal  in  all 
disputes  and  differences  "now  subsisting  or  that  hereafter  may 
arise"  between  two  or  more  States  concerning  boundary,  juris- 
diction or  any  other  cause  whatever,  and  directed  how  the  "  com- 
missioners or  judges"  should  be  selected  by  the  States,  as  each 
controversy  arose,  to  hear  and  determine  it.  There  were  110 
prize  cases  decided  under  the  provision  above  referred  to.  And 
under  the  provision  as  to  boundary  disputes  between  the  States 
a  number  of  cases  were  commenced  only  one  of  which  ever  pro- 
ceeded to  judgment.  That  was  the  case  involving  the  boundary 
dispute  between  Connecticut  and  Pennsylvania  which  involved 
the  right  to  the  Wyoming  Valley  which  Connecticut  claimed  and 
which  was  finally  awarded  to  Pennsylvania. 

But  in  the  cases  in  which  the  United  States  provided  courts 
under  the  Articles  no  officers  of  the  United  States  were  provided 
to  c-ompcl  the  execution  of  the  decrees,  and  in  all  such  cases  it  was 
necessary  to  appeal  to  the  officers  of  the  State  courts.  And  if 
the  State  courts  refused,  as  they  sometimes  did,  to  enforce  the 
viii 


INTRODUCTION 

decrees  of  the  courts  of  the  United  States  there  was  no  way  by 
which  those  decrees  could  be  enforced. 

The  Congress  was  not  given  power  under  the  Articles  to  punish 
offenses  against  the  law  of  nations.  It  was  not  even  authorized 
to  punish  treason  against  the  United  States,  or  crimes  against 
its  postal  or  coinage  laws.  The  lack  of  a  judicial  system  of  its 
own  demonstrated  in  time  the  impossibility  of  carrying  on  an  in- 
dependent government  without  one  and  made  a  new  Constitution 
necessary  —  with  provision  for  a  system  of  Federal  Courts  which 
should  have  power  to  try,  condemn  and  punish  those  guilty  of  an 
infraction  of  its  laws.  Without  a  judicial  system  of  its  own  no 
independent  government  could  be  maintained.     ^ 

The  task  of  creating  a  Constitution  for  the  Federal  government 
was  complicated  and  difficult.  But  the  Constitutional  Convention 
of  1787  accomplished  it  in  eighty-six  working  days.  In  less  than 
three  hundred  words  the  judicial  power  of  the  United  States  was 
established,  and  it  was  done  in  a  manner  which,  considered  with 
reference  to  its  adaptation  to  the  purposes  of  its  creation,  has  been 
described  as  one  of  the  most  admirable  and  felicitous  structures 
that  human  governments  have  exhibited.^ 

When  the  Constitution  superseded  the  Articles  of  Confederation 
a  government  was  created  which  had  no  prototype  in  history. 
In  providing  for  a  Federal  Judiciary  it  established  a  Supreme  Court. 
This  court,  as  Sir  Henry  Sumner  Maine  said,  was  "a  virtually 
unique  creation  of  the  founders  of  the  constitution.  .  .  .  There  is 
no  exact  precedent  for  it,  either  in  the  ancient  or  modern  world." 

The  importance  of  all  the  Federal  courts  constantly  increases. 
In  1795  John  Jay  resigned  as  Chief  Justice  of  the  Supreme  Court 
to  become  Governor  of  the  State  of  New  York.  And  when,  in 
1801,  John  Adams  nominated  him  to  be  again  Chief  Justice  he  de- 
clined the  honor,  stating  that  he  had  left  the  bench  perfectly  con- 
vinced that  under  a  system  so  defectively  devised  it  would  not 
obtain  the  energy,  weight  and  dignity  which  were  essential  to  its 
affording  due  support  to  the  national  government,  neither  would 
it  acquire  the  public  confidence  and  respect  which  it  should 
possess  !  2 

1  Curtis'  Constitutional  History  of  2  Correspondence       and       Public 

the  United  States,  Vol.  1,  p.  585.  Works  of  John  Jay,  Vol.  4,  p.  285. 

ix 


INTRODUCTION 

However  the  Constitutional  Convention  differed  upon  other 
questions  there  was  one  matter  upon  which  it  was  united.  There 
was  to  be  a  judicial  department  and  a  Supreme  Court.  But  a 
difference  of  opinion  existed  whether  there  should  be  simply  one 
central  tribunal  to  which  appeals  might  be  carried  from  the  State 
courts,  or  whether  there  should  also  be  inferior  Federal  tribunals 
established  within  the  several  States.  The  provision  for  a  central 
tribunal,  a  Supreme  Court,  was  made  imperative  while  the  right 
to  create  the  inferior  tribunals  was  conferred  upon  Congress  and 
left  discretionary  with  that  body. 

The  Constitution  declares  that  "The  judicial  power  shall  be 
vested  in  one  Supreme  Court,  and  in  such  inferior  courts  as  the 
Congress  may  from  time  to  time  ordain  and  establish."  It  de- 
fines the  subjects  to  which  the  judicial  power  shall  extend,  and  the 
cases  over  which  the  Supreme  Court  shall  have  original  jurisdiction 
and  provides  that  in  all  the  other  cases  to  which  the  judicial  power 
extends  it  shall  have  appellate  jurisdiction,  with  such  exceptions 
and  under  such  regulations  as  the  Congress  shall  make. 

The  power  given  to  Congress  to  create  courts  inferior  to  the 
Supreme  Court  was  plainly  intended  to  enable  the  national  gov- 
ernment to  establish  in  the  several  States  tribunals  competent  to 
determine  matters  of  national  jurisdiction  within  their  limits. 
The  objection  was  urged  that  it  was  unnecessary  to  create  Federal 
courts  for  this  purpose,  as  the  same  result  might  be  obtained 
through  the  instrumentality  of  the  State  courts.  Hamilton 
answered  this  objection  in  the  Federalist,  stating  that  in  his  opinion 
there  were  substantial  reasons  against  it.  "The  most  discerning," 
he  said,  "could  not  foresee  how  far  the  prevalency  of  a  local  spirit 
might  be  found  to  disqualify  the  local  tribunals  for  the  jurisdiction 
of  national  causes;  whilst  every  ma^  may  discover,  that  courts 
constituted  like  those  of  some  of  the  States  would  be  improper 
channels  of  the  judicial  authority  of  the  Union.  State  Judges, 
holding  their  offices  during  pleasure,  or  from  year  to  year,  will 
be  too  littk;  independent  to  be  relied  upon  for  an  inflexible  execu- 
tion of  the  national  laws."  ^ 

Legislatif)n  being  necessary  to  determine  what  courts  inferior 
to  the  Supreme  Court  should  be  created  and  with  how  much  of 
«  Hamilton's  Works,  Lodge's  ed.  Vol.  9,  p.  50G. 
X 


INTRODUCTION 

the  judicial  power  of  the  United  States  they  should  be  invested, 
the  matter  received  the  attention  of  the  First  Congress  which 
assembled  after  the  Constitution  was  ratified  and  the  government 
was  established.  That  Congress  adopted  the  Judiciary  Act  of 
1789.  It  is  regarded  as  the  most  important  and  the  most  satis- 
factory act  which  Congress  ever  passed.  The  honor  of  its  author- 
ship is  Oliver  Ellsworth's.  He  represented  Connecticut  in  the 
Senate  where  he  was  the  leader  of  the  Federalists  in  that  body. 
He  subsequently  became  Chief  Justice  of  the  Supreme  Court. 
The  original  bill  is  in  his  handwriting.  It  passed  both  Houses 
with  but  slight  alterations.  The  general  structure  of  the  Federal 
judicial  system  which  it  established  has  remained  in  its  essentials 
unaltered  from  that  day  to  this,  although  it  has  been  amended 
from  time  to  time  and  its  phraseology  has  been  changed. 

The  Act  provided  that  the  Supreme  Court  should  consist  of  a 
chief  justice  and  five  associate  justices  and  divided  the  United 
States  into  thirteen  judicial  districts,  one  for  each  State,  and  into 
three  circuits.  The  circuits  were  designated  as  the  Eastern, 
Middle  and  Southern  Circuits.  The  Eastern  Circuit  included 
the  States  of  Connecticut,  IMassachusetts,  New  Hampshire  and 
New  York.  The  Middle  Circuit  was  constituted  of  Delaware, 
Maryland,  New  Jersey,  Pennsylvania  and  Virginia.  The  South- 
ern Circuit  consisted  of  Georgia  and  South  Carolina.  A  district 
court  was  established  for  each  district,  and  a  circuit  court  for 
each  circuit.     There  was  to  be  one  district  judge  in  each  district. 

The  circuit  court  for  each  circuit  was  to  be  composed  of  two 
justices  of  the  Supreme  Court  and  a  district  judge.  It  evidently 
was  intended  to  be  a  coiu"t  of  distinction  and  importance. 

The  Act  gave  to  the  district  courts,  exclusively  of  the  courts 
of  the  several  States,  the  cognizance  of  all  crimes  and  offenses 
that  should  become  cognizable  under  the  authority  of  the  United 
States,  committed  within  their  respective  districts,  or  upon  the 
high  seas;  where  no  other  punishment  than  whipping,  not  ex- 
ceeding thirty  stripes,  a  fine  not  exceeding  one  hundred  dollars, 
or  a  term  of  imprisonment  not  exceeding  six  months  was  to  be 
inflicted,  together  with  civil  causes  of  admiralty  and  maritime 
jurisdiction,  etc.^ 

*  V.  S.  Stat.  L.  Vol.  1,  p.  76,  Section  9. 

xi 


INTRODUCTION 

The  Act  gave  to  circuit  courts,  in  addition  to  their  civil  juris- 
diction, exchisive  jurisdiction  of  all  crimes  and  offenses  cognizable 
under  the  authority  of  the  United  States,  except  as  otherwise 
directed  by  the  laws  of  the  United  States,  and  concurrent  juris- 
diction with  the  district  courts  of  the  crimes  and  offenses  cogni- 
zable therein.^ 

It  also  provided  for  the  appointment  in  each  district  of  "a 
meet  person  learned  in  the  law"  to  act  as  attorney  for  the  United 
States  in  such  district  whose  duty  it  was  made  to  prosecute  in  such 
district  all  delinquents  for  crimes  and  offenses  cognizable  under 
the  authority  of  the  United  States,  and  all  civil  actions  in  which 
the  United  States  should  be  concerned  except  before  the  Supreme 
Court.  And  it  provided  for  the  appointment  of  an  Attorney 
General  for  the  United  States  who  was  also  to  be  "  a  meet  person 
learned  in  the  law",  and  whose  duty  it  was  made  to  prosecute 
and  conduct  all  suits  in  the  Supreme  Court  in  which  the  United 
States  should  be  concerned,  and  who  was  to  give  his  advice  and 
opinion  upon  questions  of  law  when  required  by  the  President  of 
the  United  States,  or  when  requested  by  the  heads  of  any  of  the 
departments.^ 

The  Act  of  February  13,  1801,^  was  a  carefully  drawn  and 
comprehensive  Act.  It  abolished  the  circuit  courts  as  previously 
established,  and  made  no  provision  requiring  the  justices  of  the 
Supreme  Court  to  sit  in  the  new  circuit  courts  which  the 
Act  created.  The  States  were  divided  into  districts  and  the 
districts  were  distributed  between  six  circuits  and  it  was  provided 
that  there  should  be  a  circuit  court  of  the  United  States  in  each 
of  the  circuits,  and  that  there  should  be  in  each  circuit  three  judges 
to  attend  the  sessions  of  the  court,  any  two  of  whom  should  con- 
stitute a  quorum.  It  was  enacted  that  the  circuit  courts  should 
hold  two  sessions  annually  at  the  times  and  places  named  in  the 
Act,  and  it  authorized  the  judges  to  hold  special  sessions  for  the 
trial  of  criminal  causes  at  any  other  time  or  times  at  their  dis- 
cretion. It  invested  the  new  circuit  courts  with  all  the  powers 
which  the  old  circuit  courts  possessed,  except  as  otherwise  pro- 
vided by  the  Act. 

»  U.  S.  Stat.  L.  p.  7S,  Section  11.  ^  U.  S.  Stat.  L.  Vol.  2,  p.  89. 

•  U.  S.  Stat.  L.  p.  92,  Section  35. 
xii 


INTRODUCTION 


This  legislation  worked  a  separation  of  the  district,  circuit  and 
supreme  courts,  and  provided  for  a  separate  set  of  judges  for  each 
of  them,  making  necessary  the  appointment  of  eighteen  new- 
judges.  As  it  was  enacted  less  than  a  month  before  Mr.  Jefferson 
was  to  take  office  and  the  Federalists  took  advantage  of  the 
opportunity  to  fill  the  positions  with  their  adherents  it  provoked 
great  resentment  on  the  part  of  Jefferson  and  his  party.  The 
Federalists,  as  Jefferson  said,  driven  from  the  legislative  and  the 
executive  departments  of  the  government  retreated  into  the 
judicial  department  where  they  intrenched  themselves  as  in  a 
stronghold.  They  filled  the  new  courts  as  well  as  the  vacancies 
existing  in  the  other  courts  in  the  last  hours  of  Mr.  Adams'  ad- 
ministration. In  his  first  Message  to  Congress,  December  8, 
1801,  Jefferson  directed  the  attention  of  that  body  to  the  subject 
and  submitted  what  he  called  an  exact  statement  of  all  the  causes 
decided  since  the  first  establishment  of  the  courts,  and  of  those 
which  were  depending  when  additional  courts  and  judges  were 
brought  in  to  their  aid.  His  intention  was  to  show  that  there 
was  no  necessity  for  the  creation  of  the  additional  judges.  The 
legislation  was  made  the  subject  of  a  bitter  party  controversy. 
In  the  first  volume  of  his  History  of  the  United  States  Henry 
Adams  devotes  two  chapters  to  a  discussion  of  the  subject  of  the 
repeal  of  the  Act  which  was  accomplished  in  1802.^  The  repealing 
Act  re-established  the  circuit  courts  as  they  were  originally 
created,  and  the  justices  of  the  Supreme  Court  were  again  obliged 
to  hold  the  circuit  courts.  This  duty  was  one  which  they  cordially 
disliked  as  it  required  them  to  spend  much  time  in  travel. 

An  Act  of  April  29,  1802,  divided  the  districts  into  six  circuits, 
excepting  the  districts  of  Maine,  Kentucky  and  Tennessee.  Under 
this  division  the  first  circuit  included  New  Hampshire,  Massachu- 
setts and  Rhode  Island ;  the  second  circuit,  Connecticut,  New 
York,  and  Vermont;  the  third  circuit.  New  Jersey  and  Penn- 
sylvania ;  the  fourth  circuit,  Maryland  and  Delaware ;  the  fifth 
circuit,  Virginia  and  North  Carolina ;  and  the  sixth  circuit,  South 
Carolina  and  Georgia.^  This  Act  provided  that  the  circuit 
courts  should  be  held  by  one  justice  of  the  Supreme  Court  instead 
of  two,  as  under  the  Act  of  1789,  and  a  district  judge.  It  also 
8  U.  S.  Stat.  L.  Vol.  2,  p.  132.  »  U.  S.  Stat.  L.  Vol.  2,  p.  156. 

xiii 


INTRODUCTION 

provided  that  from  and  after  its  passage  the  Supreme  Court 
should  be  holden  at  the  City  of  Washington.  The  Judiciary 
Act  of  1789  specified  where  the  district  and  circuit  courts  should 
be  held,  and  it  declared  that  the  Supreme  Court  should  hold 
its  sessions  at  "the  seat  of  the  government."  The  court  was 
accordingly  organized  in  New  York  City,  on  February  2,  1790, 
that  being  then  the  seat  of  the  government.  John  Jay,  who  had 
been  appointed  Chief  Justice,  met,  in  the  old  Federal  Hall,  with 
his  associate  justices  and  the  letters  patent  appointing  them 
were  read,  and  a  "cryer"  was  appointed.  In  1791  the  February 
term  was  held  in  Philadelphia,  to  which  city  the  seat  of  the 
government  had  been  transferred.  In  1800  the  seat  of  govern- 
ment was  removed  from  Philadelphia  to  Washington.  The  first 
session  of  the  court  ever  held  in  Washington  opened  on  February 
4,  1801,  and  at  that  time  John  Marshall  first  took  his  seat  as 
Chief  Justice. 

The  Act  of  April  29,  1802,  provided  that  whenever  any  ques- 
tion occurred  before  a  circuit  court  upon  which  the  opinions  of 
the  judges  were  opposed  the  point  upon  which  disagreement 
happened  should  during  the  same  term,  upon  the  request  of  either 
party,  or  their  counsel,  be  certified  to  the  Supreme  Court  to  be 
finally  decided.  But  it  was  provided  that  the  certification  of 
the  question  should  not  prevent  the  cause  from  proceeding  if  in 
the  opinion  of  the  court  further  proceedings  could  be  had  with- 
out prejudice  to  the  merits ;  and  it  provided  also,  that  imprison- 
ment should  not  be  allowed,  nor  punishment  in  any  case  be  in- 
flicted where  the  judges  of  the  said  court  divided  in  opinion  upon 
the  question  touching  the  said  imprisonment  or  punishment. 

To  carry  into  effect  the  provision  of  the  Judiciary  Act  of  1789 
assigning  two  Supreme  Court  justices  to  each  circuit,  Chief  Justice 
Jay  and  Associate  Justice  Cushing  took  the  Eastern  Circuit, 
Justices  Wilson  and  Blair  the  Middle  Circuit,  and  Justices  Rut- 
ledge  and  Iredell  the  Southern  Circuit.  In  the  discharge  of  their 
duties  in  the  circuit  courts  they  laid  the  foundation  of  the  Federal 
judicial  system.  Originally  they  were  required  to  hold  two  cir- 
cuits a  year  in  each  district  in  their  particular  circuits.  This  for 
a  time  they  could  very  readily  do  as  there  were  few  cases  in  the 
Suj)reme  Court  to  be  heard  and  determined.  For  a  number  of 
xiv 


INTRODUCTION 

I 


years  they  spent  three  fourths  of  their  time  in  travehng  from  one 
court  town  to  another  within  their  respective  circuits.  Many 
most  important  trials  were  conducted  in  the  circuit  courts  before 
the  justices  of  the  Supreme  Court  sitting  as  circuit  judges.  It 
was  before  Chief  Justice  Marshall  sitting  in  the  circuit  court  at 
Richmond  in  1807  that  Aaron  Burr  was  tried  for  the  crime  of  high 
treason.  The  trial  began  on  May  22  and  lasted  with  some  inter- 
ruptions for  six  months.  The  trial,  with  the  exception  of  the  im- 
peachment of  Andrew  Johnson,  was  the  most  memorable  one  in 
our  entire  judicial  history.  There  was  an  array  of  distinguished 
counsel  on  each  side,  ^^IliamJWirt  being  preeminent  among  those 
who  appeared  for  the  prosecution,  and  Luther  Martin  among  those 
who  conducted  the  defense. 

On  April  4,  1790,  John  Jay,  at  the  time  Chief  Justice  of  the 
Supreme  Court  but  sitting  in  the  circuit  court  in  New  York  City, 
delivered  his  first  charge  to  a  Federal  grand  jury.  One  passage 
in  that  charge  cannot  be  too  often  repeated.  "Let  it  be  remem- 
bered," he  said,  "that  civil  liberty  consists  not  in  a  right  to  every 
man  to  do  just  what  he  pleases ;  but  it  consists  in  an  equal  right 
to  all  the  citizens  to  have,  enjoy,  and  do,  in  peace,  security,  and 
without  molestation,  whatever  the  equal  and  constitutional  laws 
of  the  country  admit  to  be  consistent  with  the  public  good."  As 
his  circuit  embraced  New  York  and  New  England  and  he  held 
court  in  New  York  City,  Albany,  Boston,  Exeter,  Providence, 
Hartford  and  New  Haven  it  is  not  surprising  to  be  told  that  he 
spent  far  more  time  in  the  saddle  than  on  the  bench. 

The  Act  of  1789  made  no  provision  for  the  appointment  of  a 
distinct  class  of  judges  who  were  to  be  known  as  circuit  judges. 
The  judges  who  were  to  hold  the  circuit  court  under  that  Act 
as  already  said  were  the  Supreme  Court  justices  and  the  district 
judges.  The  Act  of  1801  which  did  create  a  class  of  circuit 
judges  we  have  seen  remained  on  the  statute  books  for  a  single 
year.  In  1869,  however,  Congress  passed  an  Act  which  created 
or  authorized  the  President,  with  the  consent  of  the  Senate,  to 
appoint  circuit  judges.  This  Act  of  1869  was  made  necessary 
by  the  growth  of  the  docket  of  the  Supreme  Court  and  the  im- 
possibility of  the  justices  of  that  court  giving  the  required  atten- 
tion to  the  work  of  the  circuit  courts.     As  early  as  1792  Congress 

XV 


INTRODUCTION 

had  modified  the  necessity  for  the  constant  attendance  of  the 
justices  of  the  Supreme  Court  in  the  circuit  courts;  and  in  1793 
by  the  Act  of  ]\Iarch  2d,  the  number  of  Supreme  Court  justices 
that  should  compose  the  circuit  was  reduced  from  two  to  one. 
It  declared  that  the  attendance  of  only  one  of  the  justices  of  the 
Supreme  Court  at  the  several  circuit  courts  should  be  sufficient, 
but  provided  that  the  Supreme  Court  could,  when  special  cir- 
cumstances made  it  necessary,  assign  two  of  the  justices  to  attend. 
And  now  the-  Act  of  1869  provided  that  thereafter  the  circuit 
court  in  each  circuit  should  be  held  by  the  justice  of  the  Supreme 
Court  allotted  to  the  particular  circuit,  or  by  the  circuit  judge,  or 
by  the  district  judge  of  the  district  sitting  alone.  By  a  further 
provision  it  limited  the  duties  of  the  Supreme  Court  justice  in  the 
circuit  courts  to  a  visit  once  in  two  years.  The  original  dignity  of 
the  circuit  court  was  thus  diminished  by  the  practical  withdrawal 
of  the  Supreme  Court  justice.  At  the  same  time  the  real  usefulness 
of  the  court  was  increased  by  the  addition  of  a  circuit  judge  who 
was  always  to  be  present  in  the  circuit.  And  there  were  those  who 
thought  they  saw  in  this  legislation  that  the  future  extinction  of 
the  circuit  court  was  foreshadowed  by  the  fact  that  its  whole 
functions  might  thereafter  be  discharged  by  a  district  judge  sitting 
alone. 

The  Act  of  February  13,  1801,  to  which  reference  has  already 
been  made,  was  passed  to  tie  the  hands  of  President  Jefferson 
as  to  judicial  appointments,  and  it  provided  that  after  the  next 
vacancy  in  the  Supreme  Court  the  court  should  consist  of  only 
five  justices,  one  chief  justice  and  four  associates,  and  the  court 
continued  to  consist  of  six  members  until  the  Act  of  1807  was 
passed  by  which  the  number  was  increased  to  seven.^°  The 
Act  of  INIarch  3,  1837,  provided  that  the  Supreme  Court  should 
consist  of  nine  members.  The  first  six  circuits  remained  as 
before  constituted.  The  seventh  circuit  included  Ohio,  Indiana, 
Illinois  and  ^.lichigan;  the  eighth  circuit,  Kentucky  and  Ten- 
nessee ;  the  ninth,  Alabama,  Louisiana,  Mississippi  and  Arkansas." 
The  Act  of  March,  3,  1863,  increased  the  membership  of  the 
court  to  ten.  But  the  Act  of  July  23,  1866,  passed  to  tie  the 
luinds  of  President  Johnson,  provided  that  no  vacancy  in  the 

'"  U.  S.  Stilt.  I..  Vol.  2,  p.  420.  11  U.  S.  Stut.  L.  Vol.  5,  p.  176. 

xvi 


INTRODUCTION 

office  of  associate  justice  of  the  Supreme  Court  was  to  be  filled  by 
appointment  until  the  number  of  assoqiate  justices,  by  reason  of 
death  or  resignation,  would  be  reduced  to  six,  and  it  declared  that 
thereafter  the  said  Supreme  Court  should  consist  of  a  chief  justice 
of  the  United  States  and  six  associate  justices.  There  were  still 
to  be  nine  circuits,  however,  the  first  and  second  remaining  as 
previously  constituted.^^ 

Congress  by  Act  of  April  10,  1869,  again  declared  that  thereafter 
the  Supreme  Court  should  consist  of  nine  members,  a  chief  justice 
and  eight  associate  justices,  any  six  of  whom  should  constitute  a 
quorum.  In  creating  the  new  class  of  judges  heretofore  com- 
mented upon  it  provided  that  for  each  of  the  nine  existing  judicial 
circuits  there  should  be  appointed  a  circuit  judge  who  should 
reside  in  his  circuit  and  possess  the  same  power  and  jurisdiction 
therein  as  the  justice  of  the  Supreme  Court  allotted  to  the  circuit.^^ 

The  Act  of  August  23,  1842,  gave  the  district  courts  of  the 
United  States  concurrent  jurisdiction  with  the  circuit  courts  of 
all  crimes  and  offenses  against  the  United  States,  the  punishment 
of  which  was  not  capital.  It  also  provided  that  in  the  districts 
where  the  business  of  the  court  required  it  to  be  done  for  the  pur- 
poses of  justice  and  to  prevent  undue  expenses  and  delays  in  the 
trial  of  criminal  causes,  the  district  courts  should  hold  monthly 
adjournments  of  the  regular  terms  thereof  for  the  trial  and  hearing 
of  such  causes.^^ 

The  circuit  courts  of  appeals  are  established  by  the  Act  of 
]\Iarch  3,  1891.^^  It  provides  that  there  shall  be  in  each  circuit 
a  circuit  court  of  appeals  to  consist  of  three  judges,  and  it  con- 
fers upon  such  courts  appellate  jurisdiction.  The  old  circuit 
courts  were  not  abolished  by  the  Act,  but  they  were  deprived  of 
all  their  appellate  jurisdiction. 

The  judgments  and  decrees  of  the  circuit  courts  of  appeals  are 
final  in  most  of  the  matters  within  their  jurisdiction,  subject  of 
course  to  the  right  of  the  judges  to  certify  to  the  Supreme 
Court  under  Section  239  of  the  Judicial  Code,  and  subject  to 
the  right  of  the  Supreme  Court  under  Section  240  of  that  Code 

12  U.  S.  Stat.  L.  Vol.  14,  p.  209.  ^^  U.  S.  Stat.  L.  Vol.  26,  ch.   517,' 

"  U.  S.  Stat.  L.  Vol.  16,  p.  44.  p.  826. 

"  U.  S.  Stat.  L.  Vol.  5,  p.  517. 

xvii 


INTRODUCTION 


to  require  a  case  to  be  brought  before  it  upon  certiorari.  The 
jurisdiction  of  the  circuit  courts  of  appeals  is  wholly  appellate.  Its 
power  is  to  review  by  appeal  or  writ  of  error  final  decisions  in  the 
district  courts  in  all  cases  other  than  those  in  which  appeals  and 
writs  of  error  may  be  taken  direct  to  the  Supreme  Court.^^  And 
cases  can  be  taken  direct  to  the  Supreme  Court  from  the  district 
court  in  any  case  in  which  the  jurisdiction  of  the  court  is  in  issue, 
from  final  sentences  and  decrees  in  prize  causes,  in  any  case 
that  involves  the  construction  or  application  of  the  Constitution 
of  the  United  States,  in  any  case  in  which  the  constitutionality  of 
any  law  of  the  United  States  or  the  validity  or  constitutionality 
of  any  treaty  made  under  its  authority  is  drawn  in  question,  and 
in  any  case  in  which  the  constitution  or  law  of  a  state  is  claimed 
to  be  in  contravention  of  the  Constitution  of  the  United  States.^^ 

The  judgments  and  decrees  of  a  circuit  court  of  appeals,  subject 
to  the  provisions  above  referred  to,  are  final  in  all  cases  in  which 
jurisdiction  is  dependent  upon  opposite  parties  to  the  suit  or 
controversy  being  aliens  and  citizens  of  the  United  States  or 
citizens  of  different  states ;  also  in  all  cases  arising  under  the  patent 
laws,  under  the  trade-mark  l|aws,  under  the  copyright  laws,  under 
the  revenue  laws,  and  under  the  criminal  laws,  and  in  admiralty 
cases.-^^  Recent  legislation,  the  Act  of  January  28,  1915,  Ch.  22 
in  Section  4,  makes  the  decisions  of  the  circuit  courts  of  appeals 
final  in  cases  arising  under  the  Bankruptcy  Act.^^ 

The  Act  of  1891  which  established  circuit  courts  of  appeals 
took  away  entirely  the  right  of  appeal  from  the  district  courts 
to  the  circuit  courts  and  made  both  the  district  and  circuit  courts 
to  be  courts  of  original  jurisdiction  only  and  divided  all  cases  in 
those  courts  into  two  classes.  It  made  one  class  appealable 
directly  to  the  Supreme  Court,  It  made  the  other  class  appeal- 
able to  the  circuit  court  of  appeals. 

The  act  was  introduced  into  the  House  of  Representatives  in 
April,  1890,  It  passed  the  House  with  only  fifteen  votes  recorded 
against  it.     The  Senate  did  not  approve  that  portion  of  the  bill 

"  Judicial  Code  Sec.  128.  ^^  Its  decisions  are  also  made  final 

"  Ibid.  in    proceedings    and    causes    arising 

'» .36  St.  at  L.  1133  as  amended  by  under  the  Employers  Liability  Act, 

.38  St.  fit  L.  803.     S(!c.  128  of  .Judicial  the  Hours  of  Service  Act,  the  Ash  Pan 

Code.  Act,  and  the  Safety  Appliance  Act. 

xviii 


INTRODUCTION 

which  abolished  the  original  jurisdiction  of  the  circuit  courts, 
and  that  provision  was  stricken  out.  The  matter  was  sent  to  a 
conference  committee  of  the  two  Houses  and  that  committee 
accepted  the  Senate  provisions.  The  report  of  that  committee 
came  up  for  action  on  March  3,  1891,  the  day  before  the  expiration 
of  that  Congress.  The  House  very  reluctantly  accepted  it,  but  it 
passed  the  bill  as  amended,  as  not  to  do  so  would  have  resulted  in 
withholding  from  the  Supreme  Court  the  relief  so  sorely  needed. 
The  hope  was  that  at  an  early  day  the  Congress  would  rectify 
the  mistake  and  abolish  the  circuit  courts.  This  was  finally  accom- 
plished by  the  Act  of  March  3,  1911. 

The  Act  of  1891  creating  the  circuit  courts  of  appeals  originated 
in  the  American  Bar  Association  which  earnestly  advocated  its 
adoption  by  Congress  as  a  means  of  relieving  the  Supreme  Court 
which  was  quite  unable  to  keep  up  with  its  docket.  At  the  October 
term,  1890,  the  docket  contained  1177  appeals  which  were  undis- 
posed of  at  the  preceding  term,  together  with  623  new  appeals 
and  16  cases  of  original  jurisdiction,  which  made  a  total  of  1816 
cases.  As  the  court  was  only  able  to  dispose  of  617  cases  during 
the  term,  this  left  1199  undecided  cases.  The  court  was  there- 
fore unable  to  dispose  of  as  many  of  the  old  cases  as  there  were 
new  cases  added,  and  instead  of  gaining  on  its  docket  was  increas- 
ing the  number  of  the  undecided  cases  which  had  to  be  continued. 
Delay  in  the  administration  of  justice  often  amounts  to  a  denial 
of  justice.  The  demand  for  immediate  relief  was  therefore  loud 
and  imperative. 

In  1872  Congress  passed  an  Act  which  provided  that  whenever 
in  any  suit  or  proceeding  in  a  circuit  court  of  the  United  States 
being  held  by  a  justice  of  the  Supreme  Court  and  the  circuit  judge 
or  a  district  judge,  or  by  the  circuit  judge  and  a  district  judge, 
there  occurred  any  difference  of  opinion  between  the  judges  as  to 
any  matter  to  be  decided  the  opinion  of  the  presiding  judge  should 
prevail,  and  be  considered  the  opinion  of  the  court  for  the  time 
being.^°  And  if  there  were  a  certificate  of  difference  of  opinion 
and  the  case  was  one  which  the  Supreme  Court  might  review  either 
party  might  remove  the  judgment  to  that  court. 

The  Act  further  ptovided  that  no  indictment  found  and  pre- 
2«  U.  S.  Stat.  L.  Vol.  17,  ch.  255,  p.  193. 

xix 


INTRODUCTION 

sented  by  a  grand  jury  in  any  district  or  circuit  or  other  court  of 
the  United  States  should  be  deemed  insufficient,  nor  should  the 
trial,  judgment,  or  other  proceeding  thereon  be  affected  by 
reason  of  any  defect  or  imperfection  in  matter  of  form  only,  which 
did  not  tend  to  the  prejudice  of  the  defendant.^^ 

It  provided  also  that  in  all  criminal  causes  the  defendant  might 
be  found  guilty  of  any  offense  the  commission  of  which  is  neces- 
sarily included  in  that  with  which  he  is  charged  in  the  indictment, 
or  might  be  found  guilty  of  an  attempt  to  commit  the  offense  so 
charged  :  Provided,  That  such  attempt  be  itself  a  separate  offense. 

And  it  enacted  that  on  an  indictment  against  several,  if  the 
jury  could  not  agree  upon  a  verdict  as  to  all,  they  might  render  a 
verdict  as  to  those  in  regard  to  whom  they  agreed,  on  which  a 
judgment  should  be  entered  accordingly ;  and  the  cause  as  to  the 
other  defendants  might  be  tried  by  another  jury. 

In  1889  Congress,  by  the  Act  of  February  6th,  provided  that 
in  all  cases  of  conviction  of  crime  in  any  Federal  court  the  pun- 
ishment of  which  provided  by  law  was  death  the  final  judgment 
might  be  reexamined,  reversed  or  affirmed  by  the  Supreme  Court 
of  the  United  States  upon  a  writ  of  error,^^ 

And  the  Act  of  March  2,  1907,  commonly  called  the  Criminal 
Appeals  Act,  provides  that  a  writ  of  error  may  be  taken  by  and 
on  behalf  of  the  United  States  from  certain  decisions  of  the 
district  courts  direct  to  the  Supreme  Court  of  the  United  States 
in  criminal  cases  in  the  following  instances :  -^ 

1.  From  a  decision  or  judgment  quashing,  setting  aside,  or 
sustaining  a  demurrer  to,  any  indictment,  or  any  count  thereof 
where  such  decision  or  judgment  is  based  upon  the  invalidity  or 
construction  of  the  statute  upon  which  the  indictment  is  founded. 

2.  From  a  decision  arresting  a  judgment  of  conviction  for  in- 
sufficiency of  the  indictment,  where  such  decision  is  based  upon  the 
invalidity  or  construction  of  the  statute  upon  which  the  indict- 
ment is  founded. 

3.  From  the  decision  or  judgment  sustaining  a  special  plea  in 
})ar,  when  the  defendant  has  not  been  put  in  jeopardy. 

In  all  such  the  writ  of  error  is  to  be  taken  within  thirty  days,  is 

"  U.  S.  Stat.  L.  Vol.  17,  ch.  255,  22  25  Stat.  L.  ch.  p.  656. 

p.  198.  "  34  Stat.  L.  ch.  2564,  p.  1246. 

XX 


INTRODUCTION 

to  be  diligently  prosecuted,  and  to  have  precedence  over  all  other 
cases. 

Pending  the  prosecution  and  determination  of  the  writ  of  error  in 
the  foregoing  instances  the  defendant  is  to  be  admitted  to  bail  on 
his  own  recognizance. 

No  writ  of  error  can  be  taken  by  or  allowed  the  United  States  in 
any  case  where  there  has  been  a  verdict  in  favor  of  the  defendant. 

The  Act  of  March  3,  1911,  in  Section  269,  provided  that  "All 
of  the  said  courts  (of  the  United  States)  shall  have  power  to  grant, 
new  trials,  in  cases  where  there  has  been  a  trial  by  jury,  for  reasons 
for  which  new  trials  have  usually  been  granted  in  the  courts  of 
law."  And  this  section  was  amended  by  an  Act  approved  on 
February  26,  1919,  by  adding  the  following  provision:  "On  the 
hearing  of  any  appeal,  certiorari,  writ  of  error,  or  motion  for  a 
new  trial,  in  any  case,  civil  or  criminal,  the  court  shall  give  judg- 
ment after  an  examination  of  the  entire  record  before  the  court, 
without  regard  to  technical  errors,  defects,  or  exceptions  which 
do  not  affect  the  substantial  rights  of  the  parties."  ^'^  IVIuch  of 
the  credit  for  the  passage  of  this  Act  is  due  to  the  American  Bar 
Association  and  to  its  Committee  appointed  to  Suggest  Remedies 
and  Propose  Laws  Relating  to  Procedure.^^ 

The  Judiciary  Act  of  1789  authorized  the  taking  out  of  writs 
of  error  in  civil  cases  but  made  no  provision  for  a  writ  of  error  in 
criminal  cases.  The  law  so  remained  until  1879  when  the  circuit 
courts  were  authorized  by  the  Act  of  INIarch  3d  to  review  upon  a 
writ  of  error  all  criminal  cases  tried  before  a  district  court  where 
the  sentence  was  imprisonment,  or  fine  and  imprisonment,  or 
where,  if  a  fine  only  the  fine  exceeded  the  sum  of  three  hundred 
dollars.  And  in  1889  the  Supreme  Court,  by  the  Act  of  February 
6th,  which  became  a  law  without  the  approval  of  the  President, 
was  authorized  to  issue  writs  of  error  to  any  court  of  the  United 
States  in  capital  cases.  The  Act  of  March  3,  1891,  which  created 
the  Circuit  Courts  of  Appeals  allowed  writs  of  error  to  be  taken 
to  the  Supreme  Court  direct  from  the  district  courts  or  the  then 

2*  U.  S.  Stat.  L.  Vol.  40,  p.  1181,  has  been  indefatigable  in  his  efforts 

ch.  48.  to   obtain  needed  legislation   to   re- 

^  The  chairman  of  this  Committee  form  the  rules  of  procedure  in  the 

for  many  years  has  been  Mr.  Everett  Federal  courts. 
P.  Wheeler  of  New  York  City,  who 

xxi 


INTRODUCTION 

existing  circuit  courts  in  cases  of  conviction  "  of  a  capital  or  other- 
wise infamous  crime."  In  other  criminal  cases  the  circuit  courts 
of  appeals  were  authorized  to  review  and  determine  upon  writ 
of  error  and  their  decisions  were  made  final.  And  the  Act  of 
January  20th,  1897,  amended  the  preceding  Act  by  striking  out 
the  words  "or  otherwise  infamous",  so  that  the  right  to  go  direct 
to  the  Supreme  Court  in  a  criminal  case  was  permitted  still  in 
cases  of  conviction  of  a  capital  crime,  but  it  was  expressly  pro- 
vided that  "appeals  or  writs  of  error  may  be  taken  from  the 
district  courts  or  circuit  courts  to  the  proper  circuit  court  of 
appeals  in  cases  of  conviction  of  an  infamous  crime  not  capital." 

The  American  Bar  Association  in  1907  created  a  Special  Com- 
mittee charged  with  the  duty  of  considering  evils  in  judicial  admin- 
istration and  remedial  procedure.  The  Committee  reported  in 
1908  ^^  and  commenting  on  writs  of  error  in  criminal  cases  said : 
"A  still  more  flagrant  abuse  which  exists  in  judicial  procedure  is 
also  an  innovation  upon  the  common  law.  This  is  the  unre- 
stricted right  to  a  writ  of  error  in  criminal  cases.  These  writs 
are  constantly  sued  out  solely  for  delay.  The  punishment  of 
notorious  criminals  is  constantly  being  postponed  in  violation  of 
every  principle  of  justice.  This  is  especially  flagrant  in  the  suing 
out  of  writs  of  error  from  the  Supreme  Court  of  the  United  States 
to  review  the  decision  of  the  highest  courts  of  criminal  jurisdiction 
in  the  different  States.  We  recommend  that  no  writ  of  error  in 
criminal  cases,  returnable  to  the  Supreme  Court  of  the  United 
States,  should  be  allowed,  unless  a  justice  of  that  court  shall  cer- 
tify that  there  is  probable  cause  to  believe  that  the  defendant  was 
unjustly  convicted. 

"At  common  law  there  was  no  writ  of  error  in  criminal  cases, 
nor  was  such  jurisdiction  conferred  upon  the  Supreme  Court  of 
the  United  States  until  the  organization  of  the  Circuit  Courts  of 
Appeals.  We  submit  respectfully  that  the  Circuit  Courts  of 
Appeals  are  entirely  competent  to  decide  upon  writs  of  error 
in  all  criminal  cases  and  that  the  jurisdiction  of  the  Supreme 
Court  in  such  cases  is  generally  invoked  chiefly  for  purpose  of 
delay." 

The  r('])f)rt  then  went  on  to  explain  that  it  was  not  intended  to 
^  RciK)riH  of  Am.  Bar  Ass.  Vol.  33,  p.  542. 
xxii 


INTRODUCTION 

divest  the  Supreme  Court  of  jurisdiction  of  writs  of  error  in  crimi- 
nal cases  which  involve  questions  of  constitutional  law.  But 
that  it  was  essential  to  the  administration  of  justice  that  such 
writs  of  error  should  not  be  sued  out  as  a  matter  of  right,  but 
only  when  a  justice  of  the  Supreme  Court  certified  that  there  is 
probable  cause  to  believe  that  the  defendant  had  been  unjustly 
convicted.  It  was  said  to  be  well  known  that  constitutional 
questions  had  been  ostensibly  raised  on  the  record  upon  frivolous 
pretexts  and  solely  for  the  purpose  of  obtaining  delay  by  writ 
of  error  returnable  to  the  Supreme  Court.  The  recommendation 
of  the  Committee  met  the  approval  of  the  Bar  Association.^^  It 
has  not,  however,  met  the  approval  of  Congress. 

The  present  law  of  England  allows  an  appeal  in  a  criminal  case. 
In  1907  Parliament  established  a  Court  of  Criminal  Appeal.  It 
consists  of  all  judges  of  the  King's  Bench  Division  and  the  Lord 
Chief  Justice  of  England.  A  person  convicted  on  an  indictment 
may  appeal  to  this  court  on  any  ground  of  appeal  with  leave  of  the 
court  of  Criminal  Appeal  or  upon  the  certificate  of  the  judge  who  tried 
him  on  questions  of  fact  alone  or  on  questions  of  mixed  law  and 
fact.  With  the  permission  of  the  appellate  tribunal  he  is  permitted 
to  appeal  even  against  the  amount  of  his  sentence  unless  that 
is  fixed  by  law.  On  hearing  the  appeal  the  court  may  alter  the 
sentence,  but  not  necessarily  in  the  appellant's  favor.  If  the 
court  thinks  the  appellant  was  rightly  convicted  it  is  not  bound 
to  decide  in  his  favor  on  a  technical  point,  and  even  though  the 
appellant  succeeds  in  upsetting  the  conviction  on  one  charge  in 
an  indictment,  or  in  showing  that  he  has  been  found  guilty  of  an 
offense  which  he  did  not  commit  he  may  be  made  to  serve  a  pro- 
portionate sentence  in  respect  of  a  charge  on  which  he  was  properly 
found  guilty,  and  be  sentenced  on  the  offense  which  he  in  fact 
committed. ^^ 

A  great  difference  of  opinion  exists  in  England  and  in  the  United 
States  over  the  question  whether  a  writ  of  error  should  be  allowed 
in  any  criminal  case,  and  if  it  should  be,  then  for  what  reasons. 
It  is  mere  argumentum  ad  hominem  to  say  that  it  should  be  granted 
in  a  criminal  case  which  involves  life  and  liberty  because  it  is 

27  Reports  of  Am.  Bar  Ass.  Vol.  33,  ^s  7  Edw.  7,  c.  23,  amended  by  8 

p.  49.  Edw.  7,  c.  46. 

xxiii 


INTRODUCTION 

allowed  in  nearly  all  civil  cases  which  involve  money  or  property. 
It  is  allowed  in  civil  cases  not  so  much  for  the  purpose  of  ascertain- 
ing what  the  truth  is  as  for  the  purpose  of  satisfying  the  parties. 
And  society  has  more  concern  in  the  prompt  disposition  of  criminal 
than  of  civil  cases.  Indeed  in  the  just  and  prompt  disposition  of 
criminal  cases  the  public  is  about  as  much  interested  as  the  person 
accused.  The  vigor  of  the  criminal  law  depends  upon  the  prompt 
and  final  decision  of  the  cases  which  arise  under  it,  and  appeals 
and  consequent  delays  have  the  effect  of  "breaking  its  point  and 
blunting  its  edge."  It  is  beyond  doubt  true  that  all  unnecessary 
delay  in  carrying  it  into  execution  "  is  so  much  taken  away  from  its 
capacity  of  preventing  crime."  ^^  The  cases  are  few  in  which 
innocent  persons  accused  of  crime  are  found  guilty  by  juries.  And 
a  writ  of  error  in  a  criminal  case  ought  to  be  sparingly  granted. 
There  is  much  wisdom  in  the  words  of  Lombroso :  " '  Injustice 
makes  judgment  bitter, '  wrote  Bacon,  '  delay  turns  it  sour.'  As 
much  may  be  said  in  our  day,  when,  thanks  to  appeals,  the  penalty 
is  no  longer  either  prompt,  certain  or  severe." 

No  grant  of  criminal  jurisdiction  is  expressly  given  in  the  Con- 
stitution except  the  power  to  provide  for  the  punishment  of 
counterfeiting  the  security  and  current  coin  of  the  United  States, 
to  define  and  punish  piracies  and  felonies  on  the  high  seas  and  of- 
fenses against  the  law  of  nations.  There  is,  however,  a  recogni- 
tion of  the  power  of  Congress  to  enact  criminal  laws  in  the  various 
amendments  to  the  Constitution  relating  to  indictments,  trials 
and  punishments.  The  power  to  pass  criminal  laws  may  also  be 
included  in  the  express  power  granted  in  Art.  1,  Sec.  8,  "to  make 
all  laws  which  shall  be  necessary  and  proper  for  carrying  into  exe- 
cution the  foregoing  powers  and  all  other  powers  vested  by  this 
Constitution  in  the  Government  of  the  United  States,  or  any  De- 
partment, or  officer  thereof." 

The  provisions  of  the  Constitution  which  deal  with  criminal 
matters  relate,  almost  exclusively,  to  procedure.  Thus  we  find 
it  provided  that 

"  The  trial  of  all  crimes,  except  in  cases  of  punishment,  shall  be 
by  jury ;  and  such  trial  shall  be  held  in  the  State  where  the  said 
crimes  shall   have  been  committed  ;    but  when  not  committed 

"  Stephen's  OeiKinil  View  of  the  Criminal  Law  of  England,  2d  ed.  p.  173. 
xxiv 


INTRODUCTION 

within  any  State,  the  trial  shall  be  at  such  place  or  places  as  the 
Congress  may  by  law  have  directed. 

"  No  person  shall  be  convicted  of  treason  unless  on  the  testimony 
of  two  witnesses  to  the  same  overt  act,  or  on  confession  in  open 
court. 

"No  attainder  of  treason  shall  work  corruption  of  blood,  or 
forfeiture,  except  during  the  life  of  the  person  attainted. 

"A  person  charged  in  any  State  with  treason,  felony,  or  other 
crime,  who  shall  flee  from  justice,  and  be  found  in  another  State, 
shall  on  demand  of  the  executive  authority  of  the  State  from 
which  he  fled,  be  delivered  up,  to  be  removed  to  the  State  having 
jurisdiction  of  the  crime. 

"The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated,  and  no  warrants  shall  issue  but  upon  prob- 
able cause,  supported  by  oath  or  affirmation,  and  particularly 
describing  the  place  to  be  searched,  and  the  persons  or  things  to 
be  seized. 

"No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indictment  of  a  grand 
jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
militia,  when  in  actual  service  in  time  of  war  or  public  danger ; 
nor  shall  any  person  be  subject  for  the  same  offense  to  be  twice 
put  in  jeopardy  of  life  or  limb ;  nor  shall  be  compelled  in  any 
criminal  case  to  be  a  witness  against  himself ;  nor  be  deprived  of 
life,  liberty,  or  property,  without  due  process  of  law. 

"In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right 
to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the  State  and 
district  wherein  the  crime  shall  have  been  committed,  which 
district  shall  have  been  previously  ascertained  by  law,  and  to  be 
informed  of  the  nature  and  cause  of  the  accusation ;  to  be  con- 
fronted with  the  witnesses  against  him;  to  have  compulsory 
process  for  obtaining  witnesses,  in  his  favor ;  and  to  have  the  assist- 
ance of  counsel  for  his  defense. 

"Excessive  bail  shall  not  be  required,  nor  excessive  fines  im- 
posed, nor  cruel  and  unusual  punishments  inflicted." 

All  the  foregoing  provisions  of  our  fundamental  law  are  a  part 
of  the  adjective  criminal  law.     When  we  look  to  ascertain  what 

XXV 


INTRODUCTION 

the  substantive  criminal  law  of  the  United  States  is  we  must  find 
it  in  the  Acts  of  Congress,  for  next  to  nothing  of  it  is  in  the  Con- 
stitution. 

The  Constitution  does,  however,  declare  the  crime  of  treason. 
It  says  that  "  Treason  against  the  United  States  shall  consist  only 
in  levying  war  against  them,  or  in  adhering  to  their  enemies,  giving 
them  aid  and  comfort." 

The  Supreme  Court  has  said  many  times  that  there  is  no  com- 
mon law  of  the  Federal  courts,  and  this  is  the  prevalent  opinion 
of  the  profession.  It  is  said,  however,  that  there  is  a  class  of 
civil  cases  which  fall  beyond  State  control,  and  which  have  not 
been  touched  by  Congressional  action,  in  which  the  Federal 
courts  enforce  a  "common  law"  derived  from  some  source  not 
clearly  indicated.^"  With  that  we  are  not  now  concerned.  The 
question,  which  in  this  connection  is  important,  is  whether  there 
is  a  common  law  of  crimes  which  the  Federal  courts  administer. 

The  question  came  before  a  circuit  court  in  1789  in  United 
States  V.  Worrall,  2  Dallas,  384.  One  Worrall  was  charged  with 
an  attempt  to  bribe  the  Commissioner  of  the  Revenue.  There 
was  no  Act  of  Congress  creating  or  defining  the  crime,  and  it  was 
claimed  that  the  common  law  could  be  relied  upon  to  supply  its 
place.  The  case  was  heard  before  Justices  Chase  and  Peters. 
Mr.  Justice  Chase  expressed  himself  with  great  force  and  clearness 
to  the  effect  that  the  Federal  government  had  no  common  law 
and  that  no  indictment  could  be  sustained  for  an  offense  at  com- 
mon law.  "It  is  attempted,  however,"  he  said,  "to  supply  the 
silence  of  the  Constitution  and  Statutes  of  the  Union,  by  resorting 
to  the  common  law,  for  a  definition  and  punishment  of  the  of- 
fence which  has  been  committed.  But  in  my  opinion,  the  United 
States,  as  a  Federal  government,  have  no  common  law;  and 
consequently,  no  indictment  can  be  maintained  in  their  courts, 
for  offences  at  the  common  law.  If,  indeed,  the  United  States 
can  be  supposed,  for  a  moment,  to  have  a  common  law,  it  must, 
I  presume,  be  that  of  England ;  and  yet  it  is  impossible  to  trace 
when  or  how  the  system  was  adopted,  or  introduced.  With 
respect  to  the  individual  States  the  difficulty  does  not  occur. 
When  the  American  colonies  were  first  settled  by  our  ancestors, 
*•  Sco  fin  art  irlf>,  by  Edward  C.  Eliot  in  Am.  Law  Review,  1902,  Vol.  36,  p.  498. 
xxvi 


INTRODUCTION 

it  was  held,  as  well  by  the  settlers  as  by  the  Judges  and  lawyers 
of  England,  that  they  brought  hither,  as  a  birthright  and  inherit- 
ance, so  much,  of  the  common  law,  as  was  applicable  to  their  local 
situation  and  change  of  circumstances.  But  each  colony  judges 
for  itself  what  parts  of  the  common  law  were  applicable  to  its 
new  condition ;  and  in  various  modes,  by  legislative  acts,  by 
judicial  decisions,  or  by  constant  usage,  adopted  some  parts  and 
rejected  others.  Hence,  he  who  shall  travel  through  the  different 
States,  will  soon  discover  that  the  whole  of  the  common  law  of 
England  has  been  nowhere  introduced ;  that  some  States  have 
rejected  what  others  have  adopted ;  and  that  there  is,  in  short, 
a  great  and  essential  diversity  in  the  subjects  to  which  the  common 
law  is  applied,  as  well  as  in  the  extent  of  its  application.  The 
common  law,  therefore,  of  one  State  is  not  the  common  law  of 
another ;  but  the  common  law  of  England  is  the  law  of  each  State, 
so  far  as  each  State  has  adopted  it ;  and  it  results  from  that  posi- 
tion, connected  with  the  judicial  act,  that  the  common  law  will 
always  apply  to  suits  between  citizen  and  citizen,  whether  they 
are  instituted  in  a  Federal  or  State  court."  The  matter  is  so 
well  and  clearly  put  that  the  length  of  the  quotation  is  'justified. 
Mr.  Justice  Peters  was  not  convinced,  however,  and  took  an 
opposing  view.  The  opinion  of  Mr.  Justice  Chase  was  ultimately 
established  beyond  question  by  the  subsequent  decisions  of  the 
Supreme  Court.  It  is  interesting  to  observe  that  though  the 
Court  was  equally  divided  as  to  the  law  the  defendant  was  sen- 
tenced to  imprisonment  for  three  months  and  to  pay  a  fine  of 
$200.  Before  sentence  the  judges  and  the  United  States  at- 
torney had  expressed  a  wish  that  the  case  might  be  put  into  such 
form  as  to  obtain  an  ultimate  decision  from  the  Supreme  Court, 
but  the  counsel  for  the  defendant  said  that  they  did  not  feel 
authorized  to  enter  into  a  compromise  of  that  nature.  Then 
followed  brief  consultation  between  the  two  judges,  and  the  char- 
acter of  the  sentence  shows  that  it  was  a  compromise  between 
them.  The  result  has  been  fittingly  characterized  as  "a  lame 
and  impotent  conclusion." 

It  has  long  been  the  established  law  that  the  criminal  jurisdic- 
tion of  the  Federal  courts  is  confined  to  such  offenses  as  are  brought 
within  their  jurisdiction  by  an  Act  of  Congress.     The  matter 

xxvii 


INTRODUCTION 

was  settled  in  1812  in  United  States  v.  Hudson,  7  Cranch,  32. 
The  court  said  that  the  only  question  which  the  case  presented 
was  whether  the  circuit  courts  of  the  United  States  can  exercise 
a  common  law  jurisdiction  in  criminal  cases.  This  question  was 
answered  by  saying:  "The  legislative  authority  of  the  Union 
must  first  make  an  act  a  crime,  affix  a  punishment  to  it,  and 
declare  the  court  that  shall  have  jurisdiction  of  the  offense." 

The  Congress  appreciated  the  necessity  of  legislating  on  this  sub- 
ject, and  the  year  after  the  Judiciary  Act  was  passed  it  passed 
the  Act  of  April  30,  1790,  which  declared  what  should  constitute 
criminal  offenses  against  the  United  States  and  what  punishment 
should  be  imposed.  It  imposed  the  penalty  of  death  for  treason, 
murder  and  piracy,  and  declared  that  the  manner  of  inflicting 
that  punishment  should  be  by  hanging  by  the  neck  until  dead 
the  persons  convicted.  It  was  thought  necessary  to  declare 
that  there  should  be  no  benefit  of  clergy  in  cases  where  the  punish- 
ment is  death.  The  Act  also  expressly  provided  that  no  conviction 
or  judgment  for  any  of  the  offenses  defined  in  the  Act  should  work 
corruption  of  blood  or  any  forfeiture  of  the  estate.  It  declared 
that  if  a  person  indicted  of  any  of  the  offenses  set  forth  in  the  Act 
for  which  the  punishment  imposed  was  death  stood  mute  or  would 
not  answer  to  the  indictment  the  trial  should  proceed  as  if  he  had 
pleaded  not  guilty.  The  offenses  against  the  United  States  for 
which  punishment  was  imposed  were  those  of  treason,  piracy, 
murder,  manslaughter,  maiming,  forgery  and  counterfeiting, 
stealing  and  larceny,  perjury  and  subornation  of  perjury,  bribery 
and  resisting  an  officer  and  obstruction  of  process.  It  was  provided 
that  if  any  person  or  persons  should  within  any  fort,  arsenal,  dock- 
yard, magazine,  or  in  any  other  place  or  district  of  country  under 
the  sole  and  exclusive  jurisdiction  of  the  United  States  commit 
the  crime  of  willful  murder  such  person  on  conviction  should  suffer 
death.  And  it  gave  to  the  court  pronouncing  sentence  the  dis- 
(Totionary  right  to  add  to  the  judgment  that  the  body  of  the 
od'endcr  should  be  delivered  to  a  surgeon  for  dissection,  in  which 
case  it  was  made  the  duty  of  the  marshal  to  deliver  the  body  to  the 
surgeon  after  the  execution.  Provision  was  made  for  the  punish- 
ment of  any  person  suing  out  a  writ  or  process  in  any  court  of  a 
State,  or  of  the  United  States,  whereby  the  person  of  any  ambas- 
xxviii 


INTRODUCTION 

sador  or  public  minister  who  had  been  received  as  such  by  the 
President,  or  any  domestic  of  such  person,  might  be  arrested  or 
imprisoned  or  his  goods  attached.  All  persons  suing  out  such 
writ  or  process  as  well  as  his  attorneys  and  the  officers  executing 
such  a  writ  were  declared  violators  of  the  laws  of  nations  and 
disturbers  of  the  public  repose.  They  were  made  liable  to  im- 
prisonment for  not  exceeding  tliree  years,  and  to  be  fined  at  the 
discretion  of  the  court.  It  was  also  provided  that  any  person  who 
should  assault,  strike,  wound,  imprison,  or  in  any  other  manner 
infract  the  law  of  nations  by  offering  violence  to  the  person  of  an 
ambassador,  or  other  public  minister,  should  on  conviction  be 
liable  to  imprisonment  for  not  exceeding  three  years,  and  to  be 
fined  at  the  discretion  of  the  court.  Provision  was  also  made  for 
the  punishment  of  certain  offenses  committed  upon  the  high  seas, 
or  in  any  river,  haven,  basin  or  bay  out  of  the  jurisdiction  of  any 
particular  State.^^ 

Viscount  Bryce,  writing  in  his  American  Commonwealth,  vol- 
ume 2  (1st  ed.),  p.  497,  and  commenting  on  the  administration  of 
justice,  seems  to  entertain  the  opinion  that  in  the  United  States 
civil  justice  is  better  administered  than  criminal  justice.  He  says : 
"I  shrink  from  making  positive  statements  on  so  large  a  matter 
as  the  administration  of  justice  over  a  vast  country  whose  States 
differ  in  many  respects.  But  so  far  as  I  could  ascertain,  civil 
justice  is  better  administered  than  might  be  expected  from  the 
character  which  the  Bench  bears  in  most  of  the  States.  In  the 
Federal  courts  and  in  the  superior  courts  of  the  six  or  seven  States  ^^ 
just  mentioned  it  is  equal  to  the  justice  dispensed  in  the  superior 
courts  of  England,  France  and  Germany.  In  the  remainder  it  is 
inferior,  that  is  to  say,  civil  trials,  whether  the  issue  be  of  law  or 
of  fact,  more  frequently  give  an  unsatisfactory  result ;  the  opinions 
delivered  by  the  judges  are  wanting  in  scientific  accuracy,  and 
the  law  becomes  loose  and  uncertain.  .  .  .  The  injury  to  the 
quality  of  State  law  is  mitigated  by  the  fact  that  abundance  of 
good  law  is  produced  by  the  Federal  courts,  by  the  highest  courts 

'^  U.  S.  St.  at  L.  Vol.  1,  ch.  9,  p.  example  among  Eastern  and  Michi- 

112.  ^  gan    among    Western    States,    they 

^  "In  six  or  seven  commonwealths,  (State    judges)    stand    high."     This 

of  which  Massachusetts  is  the  best  was  written  in  1888. 

XX  ix 


INTRODUCTION 

of  the  best  States,  and  by  the  judges  of  England,  whose  reported 
decisions  are  frequently  referred  to.  Having  constantly  ques- 
tioned those  I  met  on  the  subject,  I  have  heard  comparatively 
few  complaints  from  commercial  men  as  to  the  eflBciency  of  State 
tribunals,  and  not  many  even  from  the  leading  lawyers,  though 
their  interest  in  the  scientific  character  of  law  makes  them  severe 
critics  of  current  legislation,  and  opponents  of  those  schemes  for 
codifying  the  common  law  which  have  been  dangled  before  the 
multitude  in  several  States.  It  is  otherwise  as  regards  criminal 
justice.  It  is  accused  of  being  slow,  uncertain,  and  unduly  lenient 
both  to  crimes  of  violence  and  to  commercial  frauds.  Yet  the 
accusers  charge  the  fault  less  on  the  judges  than  on  the  soft- 
heartedness  of  juries,  and  on  the  facilities  for  escape  which  a  cum- 
brous and  highly  technical  procedure,  allowing  numerous  oppor- 
tunities for  interposing  delays  and  raising  points  of  law,  provides 
for  prisoners.  Indulgence  to  prisoners  is  now  as  marked  as  harsh- 
ness to  them  was  in  England  before  the  days  of  Bentham  and 
Romilly.  The  legislatures  must  bear  the  blame  of  this  procedure, 
though  stronger  men  on  the  Bench  would  more  often  over-rule 
trivial  points  of  law  and  expedite  convictions."  The  importance 
of  this  criticism  is  enhanced  when  we  remember  that  it  comes 
from  one  who  is  a  member  of  the  legal  profession,  a  barrister 
of  Lincoln's  Inn,  and  who  for  more  than  twenty  years  was  Regius 
Professor  of  Civil  Law  at  Oxford  University. 

Notwithstanding  the  attention  which  this  criticism  directed 
to  the  subject  the  administration  of  criminal  justice  in  this 
country  has  not  improved  so  much  as  could  be  desired.  Some 
years  later,  in  1905,  Ex-President  Taft,  speaking  at  the  Yale  Law 
School  but  not  noticing  the  criticism  of  Bryce,  did  not  hesitate  to 
say :  "  that  the  administration  of  the  criminal  law  in  all  the 
States  of  the  Union  (there  may  be  one  or  two  exceptions)  is  a 
disgrace  to  our  civilization."  ^^ 

In  1911  Mr.  Moorfield  Storey,  a  former  President  of  the  Ameri- 
can Bar  Association  and  one  of  the  foremost  lawyers  of  the  coun- 
try, said  in  an  address  before  the  law  students  of  Yale  University : 
"There  is  no  part  of  its  work  in  which  the  law  fails  so  absolutely 
and  so  liuli'Tously  as  in  the  conviction  and  punishment  of  criminals, 
'»  Yale  Law  Journal  for  1905. 
XXX 


INTRODUCTION 

and  its  failures  in  this  respect  endanger  the  whole  foundation  of 
society." 

Mr.  Henry  W.  Taft,  delivering  before  the  New  York  Bar  Asso- 
ciation in  January,  1920,  the  President's  Address,  called  attention 
to  the  alarming  increase  of  the  crime  of  homicide  in  this  country 
and  the  small  percentage  of  the  convictions  for  its  commission. 
He  gives  the  following  table  as  showing  the  homicides  and  execu- 
tions for  the  years  from  1912  to  1918  in'clusive  : 


Year 

Homicides 

Executions 

1912 

9,152 

145 

1913 

8,902 

88 

1914 

8,251 

74 

1915 

9,230 

119 

1916 

9,850 

106 

1917 

9,180 

70 

1918 

8,850 

71 

In  1913,  in  England  and  Wales,  314  persons  were  tried  for 
murder  and  homicides  and  there  were  91  convictions.  In  1914 
there  were  62  persons  charged  with  the  offense  and  27  were  con- 
victed. 

Even  making  due  allowance  for  imperfect  records,  and  varying 
methods  of  keeping  records,  Mr.  Taft  says :  "  The  figures  show 
what  is  measurably  near  a  scandalous  condition  in  the  adminis- 
tration of  criminal  justice." 

President  Eliot  has  been  quoted  as  saying  that  "the  defences 
of  society  against  criminals  have  broken  down." 

There  has  not  been  any  very  serious  attempt  made  to  show 
that  these  criticisms  upon  the  administration  of  the  criminal  law 
in  this  country  are  altogether  undeserved.  It  must  be  borne  in 
mind,  however,  that  there  is  no  one  system  of  criminal  procedure 
in  our  country,  and  that  the  practice  varies  greatly  not  only  in 
different  States  but  between  the  States  and  the  United  States. 
While  the  administration  of  the  criminal  law  in  the  State  courts, 
and  in  the  Federal  courts  as  well,  is  not  all  that  any  of  us  would 
like  it  to  be,  it  must  in  fairness  be  said  that  the  criminal  procedure 
in  some  of  the  jurisdictions  is  very  much  better  than  in  others. 
And  it  may  be  added  that  in  all  jurisdictions  for  some  years  to 

xxxi 


INTRODUCTION 

come  the  Bar  and  the  Bench  should  cooperate  to  secure  such 
changes  in  criminal  procedure  as  may  be  necessary  to  improve  the 
administration  of  the  criminal  law  throughout  the  whole  country. 

It  is  interesting  in  connection  with  this  important  subject  to 
recall  what  one  of  the  leaders  of  the  American  Bar  has  said  con- 
cerning it.  In  his  address  as  President  of  the  New  York  State 
Bar  Association,  in  1912,  Mr.  Root  said :  "It  is  true  that  defects 
in  procedure,  that  technicalities  and  delays  which  impede  the 
course  of  justice  here  and  elsewhere,  have  tended  to  decrease  the 
general  respect  of  the  community  for  every  one  concerned  in  the 
administration  of  the  law,  but  I  think  this  applies  less  to  the  courts 
themselves  than  it  does  to  the  Bar,  and  justly  so.  It  is  the  Bar 
that  makes  up  a  great  part  of  all  our  Legislatures  and  is  responsible 
for  the  stupid  and  mischievous  legislation  regarding  procedure 
which  hampers  the  courts  in  their  efforts  to  do  justice.  It  is  the 
Bar  which,  knowing  all  the  facts  and  familiar  with  all  the  evils, 
insists  upon  the  continuance  of  our  methods  to  promote  the 
immunity  of  criminals  and  the  hindrance  of  justice  to  the  point  of 
denial.  The  primary  fault  and  the  primary  duty  of  reform  rest 
with  us.  I  do  not  think  that  this  matter  plays  any  very  great  part 
in  the  creation  of  the  feeling  against  the  courts." 

Whether  Mr.  Boot  has  properly  apportioned  the  responsibility 
we  need  not  now  inquire.  The  important  thing  is  that  whatever 
the  defects  in  the  administration  of  criminal  justice  they  should 
be  corrected,  and  that  those  of  us  who  have  any  responsibility  in 
the  matter  whether  at  the  Bar  or  on  the  Bench  should  discharge  it. 

We  must  admit  that  the  Bar  and  the  Bench  have  come  all  too 
slowly  to  realize  that  it  is  necessary  to  put  our  house  in  order. 
And  if  the  criminal  laws  of  a  nation  reflect  the  ethical  character- 
istics of  the  people  of  which  the  nation  is  composed  are  we  in  all 
respects  prepared  now  to  be  so  judged  ? 

The  matters  upon  which  criticism  has  been  chiefly  directed 
are  the  following : 

The  ciuushing  of  indictments  or  granting  of  new  trials  because 
of  the  disfjualification  of  a  grand  juror,  or  some  technical  error 
in  tlic  iiidictniciit  or  at  the  trial. 

The  undue;  amount  of  time  used  in  selecting  juries. 

The  constitutional  provision  which  declares  that  no  person 
xxxii 


INTRODUCTION 

shall  be  compelled  in  any  criminal  case  to  be  a  witness  against 
himself,  and  the  prohibition  which  exists  in  a  number  of  the  states 
against  commenting  to  the  jury  upon  the  failure  of  the  accused 
voluntarily  to  testify. 

The  methods  used  in  the  examination  of  witnesses,  and  espe- 
cially of  experts. 

The  methods  employed  in  charging  juries. 

Delays  by  appeals  and  the  taking  of  writs  of  habeas  corpus. 

In  1900  one  lecturing  before  the  students  in  Lincoln's  Inn  on 
Changes  in  the  English  Criminal  Law  since  1800,  informed  them 
that  to  go  back  to  the  beginning  of  the  century  was  to  go  back, 
so  far  as  the  Criminal  Law  was  concerned,  to  an  age  of  barbarism. 
"The  sentence  on  a  traitor  was,"  he  said,  "that  he  must  be  drawn 
on  a  hurdle  from  the  gaol  to  the  place  of  execution,  and  when  he 
came  there  he  must  be  hanged  by  the  neck,  but  not  till  he  be  dead, 
for  he  must  be  cut  down  alive,  then  his  bowels  must  be  taken  out 
and  burnt  before  his  face,  then  his  head  must  be  severed  from  his 
body,  and  his  body  divided  into  four  quarters,  and  these  must 
be  at  the  King's  disposal."  ^^ 

For  the  way  in  which  such  sentences  were  carried  out  atten- 
tion was  called  to  Townley's  case,  18  State  Trials,  350,  351,  in 
1746.  The  law  of  England  remained  unchanged  in  this  particular 
until  1814  when  it  was  altered  by  abolishing  the  disemboweling 
and  burning,  but  drawing  on  a  hurdle,  beheading  and  quarter- 
ing remained  and  were  not  abolished  until  1870.  And  at  the 
beginning  of  the  present  century  there  still  remained  unrepealed 
an  act  passed  in  the  time  of  George  III  which  authorized  the 
monarch  to  direct  that  the  head  of  a  traitor  "  shall  be  severed 
from  the  body  whilst  alive." 

There  cannot  be  found  in  any  penal  law  which  the  L^nited  States 
ever  enacted  any  penalties  which  in  cruelty  and  barbarism  equal, 
or  which  in  any  degree  resemble,  those  of  the  English  law  at  the 
time  the  Constitution  of  the  United  States  was  adopted  and  for 
years  thereafter.  The  Congress  has  never  passed  an  Act  au- 
thorizing the  torture,  disemboweling,  branding  or  mutilation  of 
any  human  being  convicted  of  crime.  If  such  an  Act  had  ever 
^^  A  Century  of  Law  Reform  (London  1901),  p.  43. 

xxxiii 


INTRODUCTION 

been  passed  no  court  would  have  enforced  it  as  it  would  have 
been  void  under  the  Eighth  amendment  which  declares  that 
cruel  and  unusual  punishments  cannot  be  inflicted. 

In  this  country  the  colonial  criminal  laws  were  severe  but  much 
less  so  than  were  those  of  England.  The  General  Court  of  Connec- 
ticut in  1642  adopted  the  Mosaic  Code  and  specified  twelve  capital 
offenses  including  witchcraft  and  blasphemy.  The  law  read : 
"If  any  Man  or  Woman  be  a  Witch,  that  is,  hath  or  consulteth 
with  a  Familiar  Spiritt,  they  shall  be  put  to  Death."  On  Decem- 
ber 7,  1648,  a  "Bill  of  Inditement"  was  found  against  Mary 
Johnson  that  by  "her  owne  Confession,  shee  is  guilty  of  Famil- 
iarity with  the  Devill."  There  is  no  statement  as  to  whom  she 
bewitched  or  how.  She  was  executed  in  1649  or  1650.  There 
were  ten  executions  in  Connecticut  for  witchcraft.  There  were 
other  executions  for  witchcraft  in  the  New  England  Colonies  — 
for  the  belief  in  witchcraft  was  general,  and  it  was  regarded  as 
the  blackest  of  crimes.  It  was  supposed  that  Satan  exercised 
his  malevolent  influence  through  the  agency  of  human  beings, 
who,  by  formal  compact,  had  agreed  to  become  his  subjects  and 
to  serve  him.  After  1665  all  convictions  for  witchcraft  in  Con- 
necticut were  virtually  quashed  by  the  court.  Bad  as  all  this  was, 
it  was  worse  in  England.  Late  in  the  eighteenth  century  Hutch- 
inson said  without  contradiction  then  or  since  that  "more  have 
been  put  to  death  in  a  single  county  in  England,  in  a  short  space 
of  time,  than  have  suffered  in  all  New  England  from  the  first 
settlement  to  this  time."  The  settlers  of  New  England  were 
Englishmen  and  had  not  fully  emancipated  themselves  from  their 
prejudices  in  favor  of  English  laws.  Witchcraft  had  been  made  a 
felony  without  benefit  of  clergy  by  33  Henry  VIII,  c.  8,  and  5 
Eliz.  c.  16,  and  the  Statute  of  1  James  I,  ch.  12.  A  belief  in 
witchcraft  was  held  by  Coke,  Bacon,  Hale  and  Blackstone.  The 
latter  in  speaking  of  the  crime  of  witchcraft  in  his  commentaries 
says  that  "  To  deny  the  possibility,  nay  actual  existence  of  witch- 
craft and  sorcery,  is  at  once  flatly  to  contradict  the  revealed  word 
of  God,  in  various  passages  both  of  the  Old  and  New  Testament.'* 

Ill  1650  the  Ludlow  Code  was  adopted  in  Connecticut  which 
added  two  raj)itid  frimes  to  those  specified  in  the  Code  of  1642. 
It  provided  that  a  child  above  sixteen  years  of  age  who  should 
xxxiv 


INTRODUCTION 

curse  or  smite  its  parents  should  be  put  to  death.  It  declared 
that  "a  rebellious  son,  who,  having  been  chastened  by  his  father, 
would  not  obey  his  voice  and  chastisement,  but  lived  in  sundry 
and  notorious  crimes,  should  be  put  to  death."  It  also  provided 
that  for  the  crime  of  burglary  the  offender  should  be  branded 
upon  the  forehead  with  the  letter  "  B  "  ;  for  a  second  offense  that  he 
should  be  branded  and  whipped ;  and  that  for  a  third  offense  he 
should  be  put  to  death  as  incorrigible.  If  the  offense  were  com- 
mitted upon  the  Lord's  Day  to  the  punishment  of  branding  was 
to  be  added  that  of  cutting  off  the  offender's  ears.^^ 

In  the  margin  is  an  indictment  brought  in  Connecticut  for 
witchcraft.^® 

An  indictment  in  1697  closed  the  Connecticut  witchcraft  prose- 
cutions.^^ 

In  this  country  the  criminal  laws  became  humane  long  before 
the  rigorous  and  inhuman  laws  of  England  were  modified.  In 
1796  when  Chief  Justice  Swift  published  his  System  of  the  Laws 
of  Connecticut  the  crimes  for  which  death  was  the  penalty  were 
high  treason,  murder,  rape,  mayhem  and  arson  endangering  life. 

The  "flaw  in  the  indictment"  has  been  the  highway  of  escape 
for  many  convicted  criminals.  The  technicalities  in  which  some 
courts  in  this  country  have  indulged  have  been  frequently  referred 
to  as  a  reproach  to  the  administration  of  justice  and  a  mortifi- 
cation to  the  profession.  A  conviction  of  murder  has  been  set 
aside  because  in  the  name  of  the  murdered  man,  Patrick  Fitz- 
Patrick,  the  indictment  spelled  the  second  "patrick"  with  a  small 
"p."  In  another  case  a  convicted  murderer  was  granted  a  new 
trial  because  the  indictment  which  alleged  that  he  stabbed  a  man 
who  did  "instantly  die"  omitted  the  words  "then  and  there" 

^  Two  Centuries  of  American  Law,  above  the  course  of  nature  for  which 

p.  353.  both  according  to  the  lawe  of  God 

^«  John  Carrington   thou    art    in-  and    the    estabUshed    lawe    of    this 

dited  by  the  name  of  John  Carring-  Commonwealth    thou    deservest    to 

ton   of   Wethersfield  —  carpenter  — ,  dye.  —  Record  Particular  Court,  2  :17 

that  not  having  the  feare   of   God  1650-51.     Taylor's    Witchcraft    De- 

before   thine   eyes  thou   hast   inter-  lusion   in    Colonial    Connecticut,    p. 

teined    famiUarity    with    Satan    the  viii. 

great  enemye  of  God  and  man-kinde  "  See  Clark's  History  of  Connec- 

and  by  his  helpe  hast  done  workes  ticut,  p.  153. 

XXXV 


INTRODUCTION 

before  "instantly."     The  court  must  have  thought  that  the  man 
could  have  died  "instantly"  without  dying  "then  and  there." 

In  one  case  an  information  was  held  insufficient  which  charged 
that  "Lee  Look"  had  unlawfully  and  with  malice  aforethought 
killed  "Lee  Wing"  but  failed  to  aver  either  that  Lee  Wing  was  a 
human  being  or  that  he  had  been  "murdered."  Li  another  case 
a  conviction  was  set  aside  where  an  indictment  charged  that  A 
killed  B  "by  firing  a  Colt's  revolver  loaded  with  gunpowder  and 
leaden  balls,  which  he,  A,  then  and  there  had  and  held  in  his 
hands,"  because  it  did  not  allege  that  the  pistol  was  fired  at  B. 
It  was  said  that  the  pistol  might  have  been  fired  into  the  air,  or 
at  a  flock  of  birds.  The  court  could  not  see  that  B  was  hit;  he 
might  have  been  a  feeble  man  who  died  of  fright  at  the  discharge 
of  the  pistol  for  anything  the  indictment  contained !  If  either 
of  these  things  had  been  the  fact  it  would  have  been  disclosed 
at  the  trial  and  if  disclosed  the  defendant  could  not  have  been 
convicted.  An  indictment  which  charged  A  with  having  de- 
frauded the  "First  National  Bank  of  G"  was  held  defective  be- 
cause it  did  not  state  whether  the  bank  was  an  individual,  a 
partnership  or  a  corporation.  An  ordinary  person  would  presume 
that  a  "national"  bank  was  a  corporation  !     So  an  indictment  has 

been  set  aside  because  the   " Railroad  Corporation"  was 

described  as  the  " Railroad  Company."     A  conviction  for 

forgery  has  been  set  aside  where  the  forged  instrument  was  literally 
copied  into  the  indictment  because  the  copy  was  preceded  by  the 
words  "in  substance"  and  the  law  required  the  words  to  be  set 
out  according  to  their  "tenor"  which  meant  according  to  its  pur- 
port and  effect  and  not  its  actual  words  an  exact  copy.  A  man 
who  was  the  guardian  of  a  young  woman  ravished  her.  He  was 
indicted  for  rape  by  a  grand  jury  and  upon  trial  by  a  petit  jury 
was  convicted.  His  conviction  was  set  aside  on  writ  of  error 
because  of  the  omission  of  the  definite  article  "the"  before  "State" 
in  the  concluding  phrase  of  the  indictment.  The  omission  may 
have  been  due  to  the  carelessness  of  a  draftsman  or  to  the  over- 
sight of  a  copyist.  That  the  criminal  could  have  been  prejudiced 
by  the  mistake  was  impossible.  The  natural  effect  of  such  a  mis- 
carriage of  justice  upon  a  community  is  to  imj^air,  if  not  to  destroy, 
respect  for  the  administration  of  justice  through  the  courts.  It 
xxxvi 


INTRODUCTION 

has  been  well  asked  what  would  be  the  answer  if  later  a  similar 
crime  had  been  committed  in  that  neighborhood  and  the  natural 
resentment  which  it  provoked  kindled  the  people  to  mob  violence, 
and  some  one  had  asked  the  mob  to  leave  the  matter  to  the  courts 
and  been  told,  "We  have  no  respect  for  a  law  which  puts  the 
definite  article  the  in  sanctity  above  the  chastity  of  our  wives  and 
daughters"?  ^^  A  conviction  has  been  set  aside  and  a  new  trial 
granted  because  the  letter  "n"  was  accidentally  omitted  from  the 
word  larceny  in  an  indictment.  If  courts  think  they  must  render 
such  decisions,  then  there  is  need  of  a  statute  providing  that 
objections  to  indictments  must  be  made  before  trial,  and  the 
indictment  amended  where  objection  is  made  and  the  trial  judge 
deems  it  necessary.  A  statute  to  that  effect  exists  in  England 
and  in  some  of  our  States.  But  before  the  English  Statute 
was  passed  Mr.  Justice  Buller  had  quashed  an  indictment  for 
murder  because  it  said  that  "the  jurors  on  their  oath"  present, 
etc.,  instead  of  "on  their  oaths."  It  is  not  easily  tolerable  that 
the  highway  of  justice  should  be  long  obstructed  by  a  barbed 
network  of  technicalities  and  subtleties  and  meticulous  rules. 
Law  and  justice  ought  to  be  synonymous,  and  there  should  be  no 
occasion  for  complaining  that  "This  may  be  law  but  it  is  not 
justice." 

Lord  Hale  complained  in  his  day  "that  more  offenders  escape 
by  the  over-easy  ear  given  to  exceptions  in  indictments  than  by 
their  own  innocence,  to  the  shame  of  the  Government,  to  the 
reproach  of  the  law,  to  the  encouragement  of  villany  and  to  the 
dishonor  of  God."  Are  his  words  wholly  inapplicable  in  our  own 
day? 

When  the  punishment  for  crime  was  so  severe  as  to  shock  the 
moral  sense  of  the  courts,  the  lawyers  and  the  public,  techni- 
calities grew  up  which  in  the  present  state  of  the  law  are  without 
reason  or  justification  and  which  bring  the  law  into  disrepute  and 
sometimes  make  it  absurd. 

When  stealing  a  handkerchief  worth  one  shilling  was  punished 
by  death,  and  there  were  nearly  two  hundred  capital  offenses, 
it  was  to  the  credit  of  humanity,  as  the  New  York  Court  of  Ap- 
38  People  V.  Gilbert,  199  N.  Y.  28. 

xxxvii 


INTRODUCTION 

peals  has  said,  that  technicalities  should  be  invoked  in  order  to 
prevent  the  cruelty  of  a  strict  and  literal  enforcement  of  the  law.^' 
Those  times  have  passed.  The  criminal  law  is  no  longer  inhumane. 
It  has  outgrown  the  extreme  technicalities  of  the  early  times  and 
to  indulge  in  them  now  shocks  common  sense. 

It  is  essential  to  an  efficient  administration  of  the  criminal  law 
that  no  unreasonable  delays  should  be  permitted.  There  should 
be  no  excuse  for  saying  that  when  criminals  are  at  length  brought 
to  justice  the  punishment  is  so  far  removed  in  time  from  the  crime 
as  to  have  no  proper  punitive  effect.  In  England  from  the  earliest 
times  a  prisoner  has  had  the  legal  right  to  a  speedy  trial.  In  the 
United  States  the  Constitution  of  the  Nation  and  the  constitutions 
of  the  States  declare  that  in  all  criminal  prosecutions  the  accused 
shall  enjoy  the  right  to  a  speedy  trial.  That  there  should  be  a 
speedy  trial,  let  it  not  be  forgotten,  is  in  the  interest  of  society 
as  well  as  in  the  interest  of  accused  persons.  At  five  o'clock  in 
the  afternoon  of  May  11,  1812,  the  Prime  Minister  of  England, 
Spencer  Perceval,  as  he  was  entering  the  House  of  Commons,  was 
shot  by  a  Liverpool  broker  by  the  name  of  Bellingham.  On  May 
15th  Bellingham  was  arraigned  for  trial  and  on  May  18th.  he  was 
convicted  and  hanged.  Mr.  Justice  Riddle  of  the  Supreme  Court 
of  Ontario,  Canada,  recently  publicly  stated  that  he  had  been  at 
the  Bar  and  on  the  Bench  for  over  thirty  years  and  that  he  had 
never  seen  it  take  more  than  half  an  hour  to  get  a  jury  in  a  criminal 
case.  He  had  prosecuted,  he  said,  a  score  of  prisoners  charged  with 
murder,  and  had  defended  at  least  as  many.  But  he  had  never 
heard  of  a  murder  case  in  the  Province  of  Ontario  that  took  longer 
than  four  days  to  try,  and  that  was  only  one.  "I  never  was,"  he 
said,  "  in  any  case  but  that  murder  case  which  took  more  than  two 
days.  I  never  tried  a  murder  case  that  took  more  than  a  day  and 
a  quarter."  Speaking  in  1913  he  made  this  impressive  statement : 
"I  had  a  conversation  with  him  (President  Taft)  in  Augusta, 
Georgia,  some  four  years  ago  concerning  the  administration  of 
criminal  justice  in  the  United  States  and  Canada,  and  he  expressed 
to  inc  the  opinion,  which  one  of  the  speakers  this  afternoon  has 

*  See  the  remarks  of  Hon.  Fred-      the  Am.  Bar  Association,  Reports, 
erick  W.  Lehman  of  Missouri  before      Vol.  34,  p.  78. 
xxxviii 


INTRODUCTION 

quoted  to  you,  that  the  administration  of  criminal  justice  in  the 
United  States  was  a  disgrace  to  the  nation.  I  said, '  Mr.  President, 
the  last  Assize  Court  I  was  at  was  in  the  City  of  London,  Ontario, 
which  is  about  two  hours  this  side  of  the  City  of  Detroit,  in  the 
State  of  Michigan.  I  went  up  there  and  opened  an  Assize  Court 
on  the  same  day  that  in  the  City  of  Detroit  they  began  to  get  a 
jury  in  a  criminal  case.  I  had  tried  a  murder  case,  a  manslaughter 
case,  and  two  fraud  cases,  all  with  a  jury  of  course,  and  without 
a  jury  I  tried  seven  civil  cases,  closed  my  civil  and  criminal  list 
and  was  home  in  Toronto,  having  finished  the  Assize,  the  jurymen 
all  gone  home,  the  whole  matter  over,  four  prisoners  convicted 
and  on  their  way  to  the  Kingston  Penitentiary,  when  in  Detroit 
they  had  not  got  six  jurymen  ! '" 

In  the  famous  prosecution  of  Calhoun  in  a  State  court  in  Cali- 
fornia a  few  years  ago  it  is  said  that  ninety-one  days  were  spent ' 
in  getting  a  jury.  In  the  recent  prosecution  of  William  Bross 
Lloyd  in  the  criminal  court  of  Cook  County,  Illinois,  fifty  working 
days  were  spent  in  obtaining  a  jury.  The  trouble  in  all  such 
cases  grows  out  of  the  abuse  in  this  country  of  the  right  of  challenge. 
For  centuries  challenges  have  been  uncommon  in  England.  Fitz- 
James  Stephen  states  that  he  could  not  remember  more  than  two 
cases  in  that  country  in  which  any  considerable  number  of  chal- 
lenges had  been  made  in  thirty-five  years. ^°  A  system  of  procedure 
which  makes  such  things  possible  makes  it  unnecessarily  difficult 
to  protect  society  against  crime,  and  society  must  be  protected. 

At  common  law  an  accused  person  was  incompetent  to  testify, 
his  incompetency  being  based  on  his  interest  in  the  matter. 
Congress  by  the  Act  of  March  16,  1878,  has  provided  that  in  the 
trial  of  crimes,  offenses,  and  misdemeanors  in  the  United  States 
courts  the  person  so  charged  shall  at  his  own  request  but  not 
otherwise  be  a  competent  witness.  It  also  is  declared  that  his 
failure  to  make  such  request  shall  not  create  any  presumption 
against  him.'^^  The  various  States  also  have  passed  statutes 
removing  the  disability.  The  statutes  now  give  the  defendant  the 
right  at  his  own  election  and  on  his  own  behalf  to  become  a 
witness  and  permit  no  inference  to  be  drawn    from  his  silence. 

«  General  View  of  the   Criminal  «  20  Stat.  L.  20. 

Law  of  England,  p.  166. 

xxxix 


INTRODUCTION 

While  these  statutes  render  him  a  competent  witness  he  cannot 
be  compelled,  because  of  the  constitutional  provisions,  to  be- 
come  a  witness  against  himself. 

The  constitutional  prohibition  which  declares  that  no  person 
shall  be  compelled  in  any  criminal  case  to  be  a  witness  against 
himself  is  not  only  found  in  the  Constitution  of  the  United  States 
where  it  is  made  obligatory  in  all  criminal  proceedings  in  the 
Federal  courts,  but  is  also  found  in  the  several  State  Constitutions. 
The  provision  was  incorporated  in  the  Constitution  to  make  im- 
possible a  recurrence  of  the  Inquisitional  proceedings  in  which 
torture  was  resorted  to  in  periods  of  arbitrary  power.  But  it  has 
been  construed  to  mean  and  is  so  established  that  in  a  criminal 
case  the  defendant  cannot  be  compelled  at  his  trial  to  take  the 
stand  and  submit  himself  to  an  examination  before  the  jury.  In 
England  and  in  this  country  the  original  common  law  rule  did  not 
permit  a  defendant  to  testify  if  he  would.  But  in  both  coun- 
tries that  rule  has  been  abrogated  and  the  defendant  may  take 
the  stand  if  he  so  desires,  and  the  prosecution  cannot  comment 
on  his  failure  to  do  so  in  most  of  the  States  in  which  this  has  been 
allowed.  The  change  was  made  in  the  interest  of  justice,  and 
experience  has  justified  the  wisdom  of  it.  There  seems  to  be  an 
increasing  number  of  those  who  think,  and  the  writer  admits 
himself  to  be  one  of  them,  that  as  the  administration  of  the  crimi- 
nal law  is  for  the  purpose  of  convicting  those  who  are  guilty  of 
crime  the  accomplishment  of  that  result  is  seriously  and  without 
good  reason  interfered  with  by  the  constitutional  restriction  now 
under  discussion.  This  is  not  because  there  has  developed  less 
regard  for  the  rights  of  individuals  who  are  accused  of  crime,  but 
it  is  because  the  rights  of  society  on  the  one  hand  and  of  the  person 
accused  are  better  understood  and  more  justly  appreciated.  The 
privilege  of  one  accused  of  crime  to  remain  silent  before  court 
and  jury  when  he  is  summoned  to  the  bar  of  justice. is  an  ancient 
and  musty  inheritance  which  we  in  this  country  have  outgrown. 
It  had  its  basis  in  an  age  when  governments  practiced  cruelty, 
persecution  and  oppression.  In  an  age  of  the  inquisition  it  was 
needed  to  protect  the  innocent.  But  it  is  out  of  place,  I  venture 
to  say,  in  the  age  and  civilization  in  which  we  are  living.  It 
runs  counter  to  any  just  conception  of  what  is  due  to  those  who 
xl 


INTRODUCTION 

are  charged  with  the  responsibility  of  protecting  society  against 
the  criminal  classes.  It  denies  to  courts  the  easiest  and  most 
certain  way  of  determining  the  truth.  It  no  longer  serves  a  use- 
ful purpose  and  its  effect  is  to  make  more  difficult  the  conviction 
of  the  guilty.  The  aim  and  purpose  of  the  administration  of 
justice  in  criminal  cases,  as  in  civil,  is  first  to  ascertain  the  truth, 
and  the  path  which  leads  to  its  ascertainment  should  not  be 
closed  to  courts.  A  rule  of  procedure  which  tends  not  to  reveal 
the  truth  but  to  conceal  and  suppress  it  helps  to  make  the  adminis- 
tration of  justice  inefficient,  and  so  helps  to  create  popular  dis- 
content with  the  judicial  system.  Criminals  are  the  enemies  of 
society.  The  innocent  are  not  now  in  need  of  protection  against 
society,  but  society  is  in  great  need  of  protection  against  the 
criminal  classes.  What  was  intended  as  a  cloak  for  innocence 
has  been  made  into  "a  coat  of  mail  which  wards  off  from  the 
criminal  the  shaft  of  truth  which  ought  to  pierce  him." 

The  constitutional  limitation  upon  unreasonable  searches  and 
seizures,  as  well  as  that  which  entitles  the  defendant  to  be  con- 
fronted with  the  witnesses  who  testify  against  him,  although  he 
may  use  depositions  without  number  in  his  defense,  make  it  un- 
necessarily difl3.cult,  if  not  impossible  in  many  cases,  to  convict 
the  guilty. 

Trial  by  jury  secured  under  the  Constitution  is  not  an  infal- 
lible mode  of  ascertaining  truth.  No  one  has  made  that  claim 
for  it.  That  it  has  its  imperfections  is  admitted.  But  it  is  re- 
garded as  the  best  protection  for  innocence  and  the  surest  mode 
of  punishing  guilt  that  has  yet  been  discovered.  That  it  has 
stood  the  test  of  a  longer  experience  and  borne  it  better  than  any 
other  legal  institution  that  ever  existed  among  men  has  been 
justifiably  claimed  for  it.  "England  owes,"  said  Jeremiah  S. 
Black,  at  one  time  Attorney  General  of  the  United  States  as  well 
as  Secretary  of  State,  "more  of  her  freedom,  her  grandeur  and 
her  prosperity  to  that,  than  to  all  other  causes  put  together." 

The  trial  by  jury  which  is  guaranteed  by  the  Sixth  Amendment 
to  persons  accused  of  crime  is  a  trial  by  a  jury  of  twelve  men  in 
the  presence  and  under  the  superintendence  of  a  judge  empowered 
to  instruct  them  on  the  law  and  to  advise  them  on  the  facts.  In 
the  courts  of  the  United  States,  there  being  no  constitutional  or 

xU 


INTRODUCTION 

statutory  restrictions  changing  the  common  law  rule,  the  judge 
in  his  charge  to  the  jury  is  entitled  to  express  an  opinion  on  dis- 
puted questions  of  fact  in  criminal  as  Avell  as  in  civil  cases,  pro- 
vided he  makes  it  plain  that  his  opinion  as  to  the  facts  is  not 
controlling  the  ultimate  determination  being  left  to  them.  A  bill 
was  introduced  into  the  63rd  and  64th  Congresses  which  proposed 
to  amend  the  practice  and  procedure  in  Federal  courts  in  this 
respect,  and  to  make  it  reversible  error  for  a  judge  presiding  in 
any  United  States  court  to  express  his  personal  opinion  as  to 
the  credibility  of  witnesses  or  as  to  the  weight  of  the  testimony 
involved.  The  bill  was  strenuously  opposed  by  a  Committee  of  the 
American  Bar  Association  and  defeated.  It  appeared  to  be  the  opin- 
ion of  that  Association  that  the  rule  which  the  Bill  sought  to  impose 
upon  the  Federal  courts  was  one  which  would  tend  to  bring  the  ad- 
ministration of  justice  into  disrepute,  and  that  it  was  one  of  doubt- 
ful constitutionality.^^  In  the  Federal  courts,  as  in  England,  a  trial 
is  one  not  by  jury  and  lawyers,  but  by  judge  and  jury  and  the 
judge  is  a  very  important  part  of  it.  A  judge  in  Pennsylvania, 
not  a  Federal  judge  be  it  noted,  said  a  few  years  ago  that  he 
thought  it  would  be  found  that  those  States  in  which  the  powers 
of  the  trial  judge  had  been  curtailed  so  that  he  could  not  express 
an  opinion  on  the  facts  were  the  States  in  which  there  existed 
the  greatest  dissatisfaction  with  the  administration  of  the  criminal 
law.'^^  He  also  said  that  "  Probably  np  legislation  that  has  been 
passed  has  done  more  to  bring  discredit  upon  criminal  trials  than 
those  statutes  which  have  restricted  the  powers  of  the  trial  judge 
in  charging  the  jury.  In  some  States  he  is  not  permitted  to 
comment  on  the  testimony ;  in  others  he  must  reduce  his  charge 
to  writing  and  give  it  to  counsel  before  they  begin  their  argu- 
ments ;  in  others  counsel  may  write  out  a  charge  and  if  it  is 
correct  in  law,  the  judge  must  read  it  to  the  jury."  ^* 

As    I    am    not    a   trial  judge  I  shall  venture  to  say  that  I 
share  in  the  opinion  that  such  legislation  does  not  promote  the 

<^  Tho  Am.  Bar  Arb.  Journal,  Vol.  *'  Ihid.   p.  96.     Address  of  Judge 

2,    pp.    (507-f)10;    and  Ibid.   Vol.   4,  Robert   Ralston   of   Philadelphia   as 

500-503.  President  of  the  American  Institute 

"  The  Am.  Bar  Ass.  Journal,  Vol.  of  Criminal  Law  and  Criminology  in 

2,  pp.  99,  100.  1915. 
xlii 


INTRODUCTION 

administration  of  criminal  justice.  It  tends  to  make  the  con- 
viction of  the  guilty  as  difficult  as  possible,  converts  the  trial 
judge  into  a  nobody  and  deprives  the  jury  composed  of  men  in- 
experienced in  such  matters  of  the  benefit  of  his  experience  and 
wisdom.  It  is  another  safeguard  extended  to  accused  persons, 
which  adds  to  the  wonder  that  convictions  are  secured  at  all. 

In  his  General  View  of  the  Criminal  Law  of  England  ^^  Sir  James 
Fitz-James  Stephen  says:  "A  judge  who  merely  states  to  the 
jury  certain  propositions  of  law  and  then  reads  over  his  notes, 
does  not  discharge  his  duty.  ...  he  ought  not  to  conceal  his 
opinion  from  the  jury,  nor  do  I  see  how  it  is  possible  for  him  to  do  so, 
if  he  arranges  the  evidence  in  the  order  in  which  it  strikes  his 
mind.  The  mere  effort  to  see  what  is  essential  to  a  story,  in  what 
order  the  important  events  happened,  and  in  what  relation  they 
stand  to  each  other,  must  of  necessity  point  to  some  conclusion. 
The  act  of  stating  for  the  jury  the  questions  which  they  have  to 
answer,  and  of  stating  the  evidence  bearing  on  those  questions 
and  showing  in  what  respects  it  is  important,  generally  goes  a 
considerable  way  toward  suggesting  an  answer  to  them ;  and  if 
a  judge  does  not  do  as  much  at  least  as  this,  he  does  almost 
nothing." 

Criminal  procedure  in  England  was  distinguished  from  that 
in  Europe  and  in  this  country  by  the  fact  that  crimes  were  left 
like  civil  injuries  to  be  prosecuted  by  the  persons  injured.  It 
was  not  until  1879  that  an  act  was  passed  in  England  which 
created  the  office  of  a  Public  Prosecutor,  or  Director  of  Public 
Prosecutions,  whose  duty  it  was  made  to  institute  and  carry  on 
criminal  proceedings,  and  to  give  advice  and  assistance  to  police 
officers  and  other  persons,  official  or  private,  concerned  in  criminal 
proceedings.^^  The  statute  strictly  preserves,  however,  the  right 
of  a  private  person  to  institute  a  criminal  prosecution  if  he  so 
desires.  It  has  already  been  pointed  out  that  in  this  country  the 
Judiciary  Act  of  1789  provided  for  the  appointment  of  an  At- 
torney of  the  United  States  in  each  Federal  District  whose  duty 
it  should  be  to  represent  the  United  States  in  all  cases,  civil  or 
criminal,  in  which  its  interests  are  concerned. 

And  it  is  one  of  the  marked  distinctions  between  the  criminal 
«  P.  170.  "  42  &  43  Vict.  c.  22,  s.  2. 

xliii 


INTRODUCTION 

procedure  of  England  and  of  the  United  States,  and  indeed  of 
almost  all  other  countries,  that  in  England  the  Public  Prosecutor 
can  do  nothing  whatever  which  might  not  equally  be  done  by 
any  private  person  through  his  solicitor.  It  certainly  is  "a  curious 
feature"  of  the  English  law  that  any  person  may  present  a  bill 
of  indictment  against  any  person  whatever  for  almost  any  crime 
whatever  without  any  notice  to  the  accused  and  without  going 
before  a  magistrate.  It  seems  to  us  almost  incredible  that  in  that 
country  it  would  be  perfectly  lawful  for  any  man  to  accuse  the 
most  distinguished  person  of  such  crimes  as  treason,  murder  or 
rape  and  without  any  previous  authority  or  inquiry  have  him 
arrested  and  locked  up  in  prison,  and  yet  such  is  said  to  be  the 
law.47 

In  England  accused  persons  were  not  allowed  to  be  defended 
by  counsel^  except  in  cases  of  high  treason,  until  the  Prisoner's 
Counsel  Act  of  1836.  Sir  Fitz- James  Stephen  fixes  at  the  same 
date  the  entire  exemption  of  prisoners  from  interrogation.  But 
it  was  written  into  our  Constitution  nearly  fifty  years  earlier 
that  the  accused  should  have  the  assistance  of  counsel  for  his 
defense. 

There  exists  in  this  country  a  popular  criticism  of  the  judicial 
system  of  the  States  and  of  the  United  States.  The  strength  of 
the  dissatisfaction  was  seen  in  the  demand  for  the  recall  of  judges 
and  of  judicial  decisions,  and  of  other  radical  and  revolutionary 
demands.  These  strange  demands  had  their  origin  in  a  feeling 
that  in  some  way  or  other  the  judicial  system  is  wrong  and  in- 
efficient, and  that  the  administration  of  the  courts  results  too  often 
in  injustice.  The  discontent  cannot  be  denied.  One  cause  of  it 
lies  in  a  system  of  procedure  which  in  some  few  respects  has  been 
archaic  and  radically  wrong,  and  especially  so  in  matters  of  criminal 
procedure.  When  the  rules  of  criminal  procedure  result  in  an 
inefficient  administration  of  criminal  justice  there  is  a  duty  to 
correct  them. 

In  JCngland  the  necessity  of  a  reform  in  judicial  procedure  was 

recognized  long  before  the  importance  of  the  subject  attracted 

much  attention  in  this  country,  with  the  result  that  in  England 

the  rules  of  procedure  were  changed  and  the  simplicity  and  ex- 

"  Stephen's  Genorul  View  of  the  Criminal  Law  of  England,  p.  157  (2d  ed.). 

xliv 


INTRODUCTION 

pedition  of  procedure  in  the  English  courts  for  a  number  of  years 
have  been  recognized  throughout  the  world.  The  way  to  a 
more  efficient  administration  of  the  criminal  law  in  the  United 
States  lies  in  a  radical  reform  in  our  procedure. 

In  his  Message  to  Congress  of  December  6,  1910,  President 
Taft  declared  that  he  was  strongly  convinced  that  the  best  method 
of  improving  judicial  procedure  at  law  was  to  empower  the  Su- 
preme Court  to  do  it  through  the  medium  of  the  rules  of  the  court. 
He  added  that  he  could  not  conceive  any  higher  duty  that  the 
Supreme  Court  could  perform  than  in  leading  the  way  to  a  sim- 
plification of  procedure  in  the  United  States  courts.  And  in  an 
address  before  the  Kentucky  State  Bar  Association  on  July  12, 
1911,  President  Wilson  put  in  the  first  place  "the  critical  matter 
of  reform  of  legal  procedure."  He  declared  that  "The  actual 
miscarriages  of  justice,  because  of  nothing  more  than  a  mere  slip 
in  a  phrase  or  a  mere  error  in  an  immaterial  form,  are  nothing 
less  than  shocking.  Their  number  is  incalculable,  but  much  more 
incalculable  than  their  number  is  the  damage  they  do  to  the  repu- 
tation of  the  profession  and  to  the  majesty  and  integrity  of  the 
law."  In  an  address  at  Indianapolis  on  January  9,  1915,  he 
again  referred  to  the  matter,  saying  :  "  I  do  know  that  the  United 
States,  in  its  judicial  procedure,  is  many  decades  behind  every 
other  civilized  government  in  the  world ;  and  I  say  that  it  is  an 
immediate  and  imperative  call  upon  us  to  rectify  that."  In  an 
address  at  New  York  in  November,  1916,  he  once  more  recurred  to 
the  subject,  saying :  "  The  procedure  of  our  courts  is  antiquated  and 
a  hindrance,  not  an  aid,  in  the  just  administration  of  the  law. 
We  must  simplify  and  reform  it  as  other  enlightened  nations 
have  done,  and  make  courts  of  justice  out  of  our  courts  of  law." 

A  bill  drawn  by  a  committee  of  the  American  Bar  Association 
and  having  the  approval  of  that  Association  was  introduced  into 
both  Houses  of  Congress  in  1912.  It  provided  that  the  Supreme 
Court  should  have  the  power  to  regulate  pleading,  procedure,  and 
practice  on  the  common  law  side  of  the  Federal  courts.  The  pur- 
pose of  the  bill  was  to  give  to  the  Supreme  Court  the  same  authority 
to  make  rules  governing  the  entire  procedure  in  cases  at  law  that 
it  already  possessed  to  regulate  procedure  in  equity  and  admiralty 

xlv 


INTRODUCTION 

and  the  bankruptcy  courts.  Congress  has  never  seen  fit  to  confer 
the  authority.  The  effort  to  secure  the  consent  of  Congress  has 
not  been  abandoned.  The  latest  attempt  to  that  end  was  a  bill 
introduced  in  the  House  of  Representatives  on  July  23,  1919.  It 
was  referred  to  the  Committee  on  the  Judiciary  and  ordered  to  be 
printed.  Nothing  appears  to  have  been  done  about  it  since. 
It  provided  that  the  Supreme  Court  should  have  power  to  regulate 
and  prescribe  by  rules  the  forms  for  and  the  kind  and  character 
of  the  entire  pleading,  practice,  and  procedure  to  be  used  in  all 
actions,  motions,  and  proceedings  at  law  of  whatever  nature  by 
the  district  courts  of  the  United  States  and  the  courts  of  the 
District  of  Columbia.  The  passage  of  such  a  bill  would  lead  to  a 
much  needed  simplification  of  the  system  of  pleading,  practice 
and  procedure,  and  would  promote  the  speedy  determination  of 
litigation  on  the  merits. 

It  of  course  is  not  within  the  power  of  either  the  Congress  or 
of  the  courts  to  affect,  by  any  legislation  or  by  any  rules  which 
may  be  established,  the  constitutional  safeguards  and  guarantees 
relating  to  procedure  in  criminal  cases  in  the  Federal  courts.  It 
goes  without  saying  that  constitutional  provisions  can  only  be 
changed  by  amendments  to  the  Constitution,  and  such  amend- 
ments are  not  to  be  expected  for  years  to  come. 

It  is  not  to  be  inferred  from  anything  said  in  this  Introduction 
that  I  hold  the  opinion  that  in  the  United  States  the  administra- 
tion of  the  criminal  law  is  a  failure.  I  do  not  entertain  that 
opinion.  I  am,  however,  convinced  that  the  law  is  not  as  efTec- 
tively  administered  as  the  interests  of  society  require.  The 
amount  of  crime  committed  in  this  country  is  excessive.  Too 
many  of  its  perpetrators  are  never  apprehended.  Too  many  of 
those  who  are  apprehended  escape  punishment.  Trials  are  unduly 
prolonged,  and  the  time  between  conviction  and  actual  punish- 
ment is  often  so  great  as  seriously  to  impair  if  not  to  destroy  the 
deterrent  influence  of  the  conviction  and  sentence.  All  rules  of 
procedure  which  are  unnecessarily  technical  and  artificial  and 
which  make  for  unreasonable  delay  should  be  reformed.  If  in 
some  particulars  we  stand  alone  among  all  civilized  countries  in 
xlvi 


INTRODUCTION 

the  unjustifiable  obstacles  we  interpose  to  a  more  satisfactory 
administration  of  the  criminal  law  they  should  be  removed  from 
the  pathway  of  justice.  The  finis  et  frvctus  of  law  is  justice. 
No  matter  what  may  be  the  theory  or  the  science  of  the  law,  unless 
justice  is  worked  out  through  its  administration,  there  may  be 
expected  reproach  and  discontent.  If  defects  exist  in  a  system 
of  criminal  law  which  in  the  main  is  excellent,  they  should  be 
sought  out  and  eradicated.  Nothing  in  the  world  is  more  impor- 
tant than  justice.  The  safety  of  society  and  the  perpetuity  of 
government  depends  upon  it.  The  publication  of  Zoline's  Federal 
Criminal  Latv  and  Procedure,  by  making  more  accessible  to  all 
the  legislation  of  Congress  and  the  decisions  of  the  Federal  courts, 
makes  easier  the  task  of  ascertaining  wherein  the  defects  lie. 

Henry  Wade  Rogers. 

New  York,  N.  Y. 
1920. 


xlvii 


PREFACE 

In  presenting  to  the  profession  this  work  on  the  subject  of 
Federal  Criminal  Law  and  Procedure,  in  three  volumes,  the 
author  feels  that  he  should  state  the  reasons  which  prompted  him 
to  engage  in  this  undertaking. 

It  is  now  definitely  settled  that  the  rules  of  evidence  and  the 
practice  and  procedure  prevailing  in  the  courts  of  the  State  where 
the  Federal  tribunal  is  situated  have  no  application  in  the  trial  of 
criminal  cases  in  the  National  Courts.  Many  reasons  exist  for 
maintaining  the  Federal  criminal  jurisprudence  separate  and  dis- 
tinct from  that  of  the  State  Courts. 

They  may  be  summarized  as  follows : 

(a)  The  adoption  of  the  State  laws  and  of  State  procedure  for 
the  government  of  the  Federal  Courts  in  criminal  cases  would 
have  the  direct  effect  of  placing  the  criminal  jurisprudence  of  one 
sovereignty  under  the  immediate  control  of  another. 

(6)  It  would  produce  confusion  and  lack  of  uniformity  because 
one  of  the  effects  expected  from  the  establishment  of  a  national 
judiciary  was  the  uniformity  of  judicial  decisions  and  such  uni- 
formity could  not  be  expected  if  the  judicial  authority  were  shared 
by  so  many  tribunals  and, 

(c)  Whenever  the  people  of  the  United  States  by  any  consti- 
tutional provision  or  whenever  Congress  in  the  exercise  of  its 
constitutional  powers  have  legislated  specially  upon  any  matter  of 
practice,  such  legislation  is  to  that  extent  exclusive  of  any  enact- 
ment of  a  State  upon  the  same  subject  matter.  The  difference 
between  the  State  and  Federal  jurisdictions  was  aptly  pointed 
out  by  Chief  Justice  Waite,  in  the  Cruikshank  Case  (92  U.  S. 
542,  550),  in  the  following  language  : 

"The  People  of  the  United  States  resident  within  any 
State  are  subject  to  two  governments ;  one  State,  and  the 
other  National ;  Jbut  there  need  be  no  conflict  between  the 
two.     The  powers  which  one  possesses,  the  other  does  not. 

xlix 


PREFACE 

They  are  established  for  different  purposes,  and  have  separate 
jurisdictions." 

The  foregoing,  without  more,  explains  the  need  of  a  well-ar- 
ranged, up-to-date,  comprehensive  work  on  the  subject  of  Federal 
Criminal  Law  and  Procedure,  as  distinguished  from  a  general 
work  on  Criminal  Law  or  Criminal  Procedure,  but  additional 
reasons  are  not  wanting. 

The  extension  of  Federal  power  in  recent  years  to  matters 
theretofore  wholly  within  the  control  of  the  States,  and  the  pas- 
sage of  so  many  new  acts  virtually  embracing  all  forms  of  human 
endeavor  and  industry,  in  addition  to  the  many  thousands  of 
Federal  offenses  heretofore  existing,  carrying  with  them,  as  they 
do,  heavy  fines  and  penalties,  furnish  at  this  time  even  greater 
reason  for  a  book  on  Federal  Criminal  Procedure,  wherein  the 
liabilities,  rights,  privileges  and  immunities  of  a  person  accused 
of  crime  in  the  Courts  of  the  United  States  are  clearly  defined 
and  set  forth. 

The  fact  that  the  "fathers"  were  so  zealous  in  safe-guarding 
the  personal  rights  and  liberties  of  the  individual  that,  in  framing 
the  Constitution  of  the  United  States,  they  actually  prescribed 
the  most  important  parts  of  the  whole  procedure  to  be  followed 
in  criminal  cases  in  the  Courts  of  the  United  States  and  the  mat- 
ters and  things  which  should  or  should  not  be  done  in  the  trial  of 
a  criminal  case,  will  no  doubt  be  a  revelation  to  many,  for  it  will 
be  readily  conceded  that  the  Constitution  of  the  United  States 
is  less  understood  and  studied  than,  for  instance,  the  law  of  con- 
tracts, and,  it  may  be  safely  asserted,  is  rarely,  if  ever,  relied 
upon  or  consulted  for  a  solution  of  a  point  of  criminal  practice. 
Yet  it  is  all  there.  The  protection  of  the  Constitution  is  thrown 
around  the  accused  from  the  very  commencement  of  the  prose- 
cution, i.e.  from  the  arrest  to  the  very  end  of  the  trial ;  and, 
furthermore,  in  the  event  of  a  conviction  the  Constitution  steps 
in  again  and  decrees  the  kind  of  punishment  which  may  not  be 
inflicted.  Nor  does  it  stop  there;  for  it  further  provides  the 
mode  of  reviewing  the  judgment  in  an  appellate  tribunal ;  and 
lastly,  if  unsuccessful  in  his  writ  of  error,  it  has  devised  another 
method  of  relief,  namely,  an  appeal  to  Executive  clemency,  vest- 
1 


PREFACE 

ing  ample  powers  in  the  President  to  grant  pardons,  commuta- 
tions and  reprieves.  A  brief  summary  of  the  various  constitu- 
tional provisions  will  easily  sustain  the  author's  contention : 

Arrest  — " .  .  .  No  Warrants  shall  issue,  but  upon  probable 
cause,  supported  by  Oath  or  affirmation.  ..."  (Fourth 
Amendment.) 

Bail  —  "Excessive  bail  shall  not  be  required.  ..."  (Eighth 
Amendment.) 

Due  Process  of  Law  —  "  No  person  shall  be  .  .  .  deprived  of  life, 
liberty,  or  property,  without  due  process  of  law.  ..." 
(Fifth  Amendment.) 

Searches  and  Seizures  —  "  The  right  of  the  people  to  be  secure  in 
their  persons,  houses,  papers,  and  effects,  against  unreason- 
able searches  and  seizures,  shall  not  be  violated,  and  7io 
Warrants  shall  issue,  but  upon  probable  cause,  supported  by 
Oath,  or  affirmation,  and  particularly  describing  the  place  to 
he  searched,  and  the  person  or  things  to  be  seized."  (Fourth 
Amendment.) 

Venule  —  "  The  Trial  of  all  Crimes,  except  in  Cases  of  Impeach- 
ment .  .  .  shall  be  held  in  the  State  where  the  said  Crimes 
shall  have  been  committed.  ..."  (Art.  III.  Sec.  2,  Clause 
3.)  This  provision  was  modified  by  the  Sixth  Amendment 
to  the  extent  that  the  trial  must  be  had  in  the  State  and 
district  where  the  crime  was  committed,  which  district  shall 
have  been  previously  ascertained  by  law. 

Right  to  Counsel  —  "  In  all  criminal  prosecutions,  the  accused 
shall  .  .  .  have  the  Assistance  of  Counsel  for  his  defence." 
(Sixth  Amendment.) 

Privileges  and  Immunities  Against  Self-incrimination  — " .  .  . 
Nor  shall  (any  person)  be  compelled  in  any  Criminal  Case 
to  be  a  witness  against  himself.  ..."     (Fifth  Amendment.) 

Confrontation  with  Witnesses  —  "  In  all  criminal  prosecutions,  the 
accused  shall  enjoy  the  right  ...  to  be  confronted  with  the 
witnesses  against  him.  ..."     (Sixth  Amendment.) 

Speedy  and  Public  Trial  — "  In  all  criminal  prosecutions,  the 
accused  shall  enjoy  the  right  to  a  speedy  and  public  trial. 
..."     (Sixth  Amendment.) 

H 


PREFACE 

Indictments  —  "  No  person  shall  be  held  to  answer  for  a  capital, 
or  otherwise  infamous  crime,  unless  on  a  presentment  or 
indictment  of  a  Grand  Jury.  ..."     (Fifth  Amendment.) 

Trial  by  Jury  —  "  The  Trial  of  all  Crimes,  except  in  Cases  of 
Impeachment,  shall  be  by  Jury.  ..."  (Art.  III.  Sec. 
2,  Clause  3.) 

Sentence  and  Judgment  —  " .  .  .  Nor  cruel  and  unusual  punish- 
ment (shall  not  be)  inflicted."     (Eighth  Amendment.) 

Ex  Post  Facto  and  Bills  of  Attainder  —  "  No  Bill  of  Attainder 
or  ex  post  facto  Law  shall  be  passed."  (Art.  I.  Sec.  9, 
Clause  3.) 

Pardon  —  "The  President  shall  .  .  .  have  Power  to  grant 
Reprieves  and  Pardons  for  Offences  against  the  United 
States,  except  in  Cases  of  Impeachment."  (Art.  II.  Sec.  2, 
Clause  1.) 

Former  Jeopardy  —  " .  .  .  Nor  shall  any  person  be  subject  for 
the  same  offence  to  be  twice  put  in  jeopardy  of  life  or  limb. 
..."     (Fifth  Amendment.) 

Review  of  Judgment  —  " .  .  .  No  fact  tried  by  a  jury  shall  be 
otherwise  re-examined  in  any  Court  of  the  United  States, 
than  according  to  the  rules  of  the  common  law."  (Seventh 
Amendment.) 

To  this  may  be  added  that  the  crime  of  treason  and  the  mode  of 
trial  for  such  an  offense  is  also  defined  by  the  Constitution  and 
that  the  Writ  of  Habeas  Corpus  and  the  proceedings  on  Extradi- 
tion, both  international  and  interstate,  are  of  a  constitutional 
character. 

Each  clause  of  these  constitutional  provisions  has  received 
judicial  construction  from  the  highest  Court  of  the  land,  and 
statutes  have  from  time  to  time  been  passed  in  aid  of  them.  It 
is  therefore  surprising  that  no  one  has  heretofore  undertaken  to 
write  a  work  on  Federal  Criminal  Law  and  Procedure  along  con- 
stitutional lines. 

Times  like  the  present  are  full  of  danger  to  constitutional  order 
and  to  the  rights  of  the  i)e()i)]e ;  and,  if  we  expect  to  retain  the 
institutions  of  lilwrty  ;ind  justice  created  at  such  sacrifices  by 
the  founrlers  of  the  republic,  it  is  imperative  that  each  and  all 


PREFACE 

should  scrupulously  observe  the  letter  and  spirit  of  the  Consti- 
tution, which  should  include  the  administrative  and  judicial  de- 
partments of  the  Government. 

"Unconstitutional  practices,"  said  Mr.  Justice  Bradley,  "get 
their  first  footing  by  silent  approaches  and  slight  deviations  from 
legal  modes  of  procedure.  This  can  only  be  obviated  by  adhering 
to  the  rule  that  constitutional  provisions  for  the  security  of  the 
person  and  property  should  be  liberally  construed."  {Boyd  v. 
United  States,  116  U.  S.  616.) 

Feeling  that  such  a  work  ought  to  be  written,  the  author  pro- 
ceeded in  his  labors  with  all  the  industry  of  which  he  was  capable, 
and  can  he  but  succeed  in  stimulating  others  to  a  greater  observ- 
ance of  the  Constitution  of  the  United  States  and  a  deeper  study 
of  its  underlying  principles,  he  will,  indeed,  feel  himself  amply 
rewarded  for  his  arduous  task. 

In  developing  this  work  on  Federal  lines,  the  author  was  not 
unmindful  of  the  rights  of  the  States,  and,  accordingly,  at  the 
very  outset,  he  has  devoted  a  whole  chapter  to  the  powers  of 
Congress  to  enact  criminal  laws,  wherein  he  has  pointed  out  the 
lines  of  demarcation  between  the  powers  of  the  States  and  those 
of  the  United  States.  While  this  topic  more  properly  belongs 
to  the  domain  of  constitutional  law,  it  forms  an  important  part 
of  the  administration  of  criminal  law. 

Bearing  in  mind  the  essential  differences  between  the  Federal 
and  non-federal  systems  prevailing  in  this  country,  the  author  has 
written  what  he  has  reason  to  believe  is  a  complete,  logical,  con- 
cise and  comprehensive  up-to-date  work,  dealing  with  every 
phase  of  Federal  criminal  substantive  and  adjective  law  from  the 
standpoint  of  an  active  and  experienced  federal  practitioner  of 
long  standing.  He  has  aimed  to  cover  the  law  applicable,  during 
any  stage  of  a  proceeding,  to  every  condition  arising  in  and  out  of 
court,  in  which  a  person  may  find  himself  when  deprived  of  his 
liberty,  or  when  called  upon  to  defend  himself  against  a  charge  of 
having  committed  a  crime  or  offense  against  any  of  the  laws  of 
the  United  States, 

To  accomplish  this,  he  has  assembled  in  the  first  volume  of  this 
work  the  entire  body  of  the  Federal  law  relating  to  criminal  pro- 
cedure, including  the  rules  of  evidence  applicable  in  criminal 

liii 


PREFACE 

cases  in  the  Federal  Courts.  Tljey  embrace  constitutional  and 
statutory  provisions,  the  decisions  of  the  Supreme  Court  of  the 
United  States,  of  the  United  States  Circuit  Courts  of  Appeals  and, 
in  some  instances,  the  decisions  of  the  Federal  District  Courts 
pertaining  to  the  subjects  treated.  Some  of  these  have  to  some 
extent  been  dealt  with  by  other  authors  in  many  separate  text- 
books, such  as  works  on  Constitutional  Law,  Evidence,  Habeas 
Corpus,  Extradition,  Bankruptcy,  Contempt,  Interstate  and 
Foreign  Commerce,  etc.,  but  as  these  subjects  frequently  arise 
while  the  prisoner  is  at  the  bar,  when  there  is  no  time  to  consult 
so  many  different  books,  and  when  the  law  applicable  to  the  situa- 
tion must  be  applied  irrespective  of  classification,  they  were  for 
practical  reasons  incorporated  in  this  work  as  a  part  of  Federal 
criminal  procedure,  where  in  the  author's  opinion  they  properly 
belong.  In  addition  to  that,  the  author  has  also  pointed  out,  in 
many  parts  of  this  work,  how  and  when  to  raise  a  constitutional 
question,  by  which  a  person  convicted  of  a  violation  of  a  Federal 
statute  may  be  enabled  to  and  become  entitled  to  sue  out  a  writ 
of  error  directly  to  the  Supreme  Court  of  the  United  States  or  to 
have  the  point  properly  considered  in  the  United  States  Circuit 
Court  of  Appeals. 

The  various  subjects  covered  by  this  work  will  be  found  under 
appropriate  chapter  heads  and  sectional  headnotes.  All  points 
treated  are  correlated  to  the  main  subject,  conveniently  and 
logically  arranged,  and  brought  down  to  date.  The  references 
include  Volume  250  of  the  United  States  Supreme  Court  Reports 
and  Volume  264  of  the  Federal  Reports.  And  in  arranging  his 
material  the  author  followed  the  plan  and  arrangement  of  his 
book  on  Federal  Appellate  Jurisdiction  and  Procedure,  which  he 
has  reason  to  believe  proved  to  be  entirely  satisfactory  to  the 
profession.  All  obsolete  statutes,  hasty,  crude  and  antiquated 
decisions  have  been  disregarded.  Only  the  law  as  it  is  now  is 
given,  although  in  many  instances  the  old  statutes  or  decisions 
have  been  referred  to  for  a  better  understanding  of  the  new  rul- 
ings or  the  later  statutes. 

The  second  volume  deals  with  the  substantive  criminal  law.  It 
contains  the  entire  Federal  Criminal  Code  with  all  the  amend- 
ments thereto,  to  the  date  of  this  publication.  The  subjects  of 
liv 


PREFACE 

"Conspiracy"  and  "Using  the  Mails  to  Defraud,"  being  of  the 
greatest  importance,  have  been  treated  in  separate  chapters.  It  also 
contains  the  most  important  acts  not  contained  in  the  Criminal 
Code,  such  as  the  Pure  Food  Laws,  Oleomargarine,  The  Sherman 
and  Clayton  Anti-trust  Acts,  National  Banking  Acts,  Bankruptcy, 
Interstate  Commerce  Acts,  etc.,  etc.,  and  which  carry  with  them 
penal  provisions.  The  assembling  of  the  different  Federal  acts, 
embodying  criminal  provisions,  all  in  one  volume,  should  prove 
to  be  most  helpful,  saving  both  time  and  labor.  Any  one  who 
has  attempted  to  find  a  particular  act  of  Congress,  merely  by  a 
reference  to  the  date  of  its  passage,  either  through  the  Statutes  at 
Large  or  in  any  compilation  of  the  Revised  Statutes  of  the  United 
States,  no  matter  how  well  arranged,  as  most  of  them  are,  will 
appreciate  the  plan  and  arrangement  of  this  volume. 

The  trend  of  the  modern  authorities  is  to  the  effect  that  there 
is  no  exact  definition  of  the  term  "civil  liberty";  that  the  term 
only  expresses  the  balance  or  residue  of  natural  liberty,  which  is 
not  prohibited  and  which  the  laws  have  left  to  the  individual. 
How  much  of  that  natural  and  inherent  liberty  will  be  left  in  the 
individual  if  the  Congress  of  the  United  States  and  the  legisla- 
tures of  the  several  States  should  continue,  at  the  pace  at  which 
they  have  gone,  to  prohibit  the  things  which  are  still  lawful  to  do, 
by  making  criminal  certain  acts  which  are  innocent  in  themselves, 
is  a  question  deserving  the  earnest  and  thoughtful  consideration  of 
all  liberty-loving  people.  This  volume,  grouping,  as  it  does,  most 
of  the  matters  and  things  which  are  prohibited  and  penalized  by 
Federal  law%  should  bring  the  question  of  further  criminal  legislation 
vividly  to  the  attention  of  Congress.  Most  of  the  federal  criminal 
statutes  define  the  offenses  in  alternative  clauses,  so  that  it  is  not 
infrequent  that  as  many  as  ten  or  more  offenses  are  defined  in 
one  section.  By  multiplying  these,  the  number  of  Federal 
offenses  run  into  the  thousands. 

The  editorial  comments  under  each  penal  section  or  act  are 
complete  and  all  important  decisions  up  to  the  date  of  this  publi- 
cation have  been  incorporated  therein.  They  not  only  deal  with 
the  construction  and  interpretation  of  the  particular  sections  of 
the  Federal  Criminal  Code  and  of  the  Acts  of  Congress,  but  in  many 
instances  call  attention  to  a  rule  of  evidence  or  of  pleading  and 

Iv 


PREFACE 

practice  governing  the  specific  section  or  Act  under  consideration. 
These  notes,  together  with  the  work  on  procedure,  i.e.  Volume 
One,  and  the  forms  contained  in  Volume  Three,  the  author  be- 
lieves furnish  all  the  necessary  data  for  a  proper  understanding 
or  solution  of  any  matter  arising  in  the  administration  of  the 
criminal  laws  of  the  United  States. 

The  third  volume  consists  of  useful  forms  dealing  with  every 
phase  or  feature  likely  to  arise  in  the  course  of  a  Federal  Criminal 
cause  coming  before  the  trial  courts  or  on  review  before  an  appel- 
late tribunal.  Therein  are  included  also  instructions  to  juries. 
These  forms  are  classified  under  the  particular  crimes  or  sections 
of  the  Criminal  Code  or  Acts  in  connection  with  w^hich  they  were 
used.  Most  of  them  were  carefully  selected  by  the  author  from 
the  printed  records  of  the  various  cases  on  file  in  the  offices  of  the 
respective  clerks  of  the  United  States  Circuit  Courts  of  Appeals 
and  in  w^hich  decisions  have  been  rendered  quite  recently.  These 
forms  will  no  doubt,  in  many  instances,  furnish  a  guide  even  to 
the  most  experienced  practitioner  and  will  supply  many  hints  for 
the  development  of  any  case  under  preparation,  either  in  the 
court  below  or  above  and,  when  used  in  connection  with  the  other 
parts  of  this  work,  should  be  found  to  be  most  helpful. 

Treating,  as  he  had  to,  the  subject  of  Federal  Criminal  Law  and 
Procedure  as  a  distinct  and  separate  branch  of  American  Juris- 
prudence, and  freely  conceding  that  state  decisions  in  criminal 
causes  are  not  controlling  on  the  Federal  Courts,  in  the  adminis- 
tration of  Federal  criminal  law,  the  author  nevertheless  felt  that 
the  decisions  of  the  highest  courts  of  the  several  States  ought  not 
to  be  altogether  ignored,  for  most,  if  not  all,  of  the  constitutions 
of  the  States  composing  the  Union  are  modeled  and  patterned 
after  the  Constitution  of  the  United  States,  and  in  this  manner 
the  systems  of  jurisprudence  of  the  States  and  of  the  United 
States  bear  in  many  respects  a  close  resemblance  to  each  other, 
so  as  to  reflect  the  thought  and  wisdom  of  the  whole  country. 
Together  they  form  one  whole  and  harmonious  system  of  laws 
and  furnish  the  people  of  the  United  States  with  a  complete 
government. 

For  these  reasons  the  decisions  of  the  State  Courts,  particularly 
when  expounding  the  rules  of  the  common  law  or  when  treating 
Ivi 


PREFACE 

upon  a  subject  of  criminal  law  not  yet  covered  by  a  Federal 
statute  or  Federal  decision,  are  entitled  to  great  weight  and  ordi- 
narily are,  as  they  should  be,  accepted  as  authority  in  the  courts 
of  the  United  States.  Accordingly,  the  author  has  endeavored 
in  this  work  to  cite  and  correlate  certain  important  State  decisions 
with  such  parts  of  the  Federal  law  to  which  they  are  directly 
applicable. 

It  would  be  impracticable  to  detail  at  length,  or  even  to  make 
mention  of,  the  numerous  subjects  and  topics  treated  and  dis- 
cussed in  this  work,  except  to  state  the  scope  of  it  in  a  general 
way.  For  this  reason,  the  author  refers  the  reader  to  the  Table 
of  Contents,  showing  an  analysis  of  the  chapters.  While  the 
work  is  so  arranged  that  each  topic  will  be  found  where  it  logi- 
cally ought  to  be,  nevertheless,  for  greater  certainty,  the  author 
has  prepared  a  full  and  complete  general  Index,  as  well  as  an 
Index  to  the  Forms  in  Volume  Three,  and  a  Table  of  the  Cases 
cited,  all  alphabetically  arranged.  It  is  therefore  hoped  that 
there  will  be  no  difficulty  in  locating  any  point  treated  in  the 
three  volumes. 

The  author  is  much  indebted  to  the  Hon.  Henry  Wade  Rogers, 
Judge  of  the  United  States  Circuit  Court  of  Appeals  for  the 
Second  Circuit,  not  only  for  his  scholarly  and  most  interesting 
and  excellent  introduction  to  these  volumes,  but  also  for  the 
interest  taken  by  him  while  this  work  was  being  written,  which 
served  as  an  encouragement  to  the  author  in  the  difficult  task 
undertaken  by  him.  The  learned  jurist  read  this  work  both  in 
manuscript  and  in  proof  and  made  many  valuable  suggestions, 
all  of  which  have  been  incorporated  therein. 

He  is  also  under  obligation  to  the  Hon.  Martin  T.  Manton, 
and  the  Hon.  Julius  M.  Mayer,  of  the  Federal  Bench  of  the  Second 
Circuit,  for  the  many  courtesies  extended  by  each  of  them  to  him 
and  for  the  many  pertinent  suggestions  while  the  work  was  in 
preparation,  and  for  the  trouble  imposed  upon  them  in  reading 
the  manuscript  before  it  went  to  press. 

Thanks  are  extended  to  the  Hon.  Learned  Hand,  Judge  of  the 
United  States  District  Court  for  the  Southern  District  of  New 
York  and  to  the  Hon.  Julius  M.  Mayer,  of  the  same  Court,  for 
certain  "Charges  to  Juries"  delivered  by  them  in  several  impor- 

Ivii 


PREFACE 

tant  cases  and  which  they  kindly  furnished  to  the  author.  These 
were  incorporated  in  the  third  volume  of  this  work  as  part  of  the 
forms;  also  to  the  Hon.  Augustus  N.  Hand,  Judge  of  the  United 
States  District  Court,  for  the  Southern  District  of  New  York,  for 
the  courtesy  extended  by  him  to  the  author  on  many  occasions  in 
discussing  various  phases  of  federal  jurisprudence,  and  for  the  sug- 
gestions made  by  the  learned  judge  to  the  author,  which  proved 
to  be  very  valuable. 

Grateful  recognition  is  hereby  extended  to  Mr.  John  Simpson 
of  New  York  City  for  the  valuable  assistance  rendered  by  him 
to  the  author  in  developing  the  authorities  relating  to  certain 
subjects  treated  in  this  work  and  in  rendering  many  other  valuable 
services  in  connection  with  same. 

Sincere  and  grateful  recognition  is  extended  by  the  author 
to  the  Hon.  James  D.  Maher,  Clerk  of  the  United  States  Supreme 
Court  and  William  R.  Stansbury,  his  assistant ;  Hon.  Arthur  I. 
Charron,  Clerk  of  the  U.  S.  Circuit  Court  of  Appeals  for  the  First 
Circuit ;  Hon.  William  Parkin,  Clerk  of  the  U.  S.  Circuit  Court 
of  Appeals,  for  the  Second  Circuit,  and  the  Hon.  Dimon  E.  Rob- 
erts, his  Assistant ;  Hon.  Saunders  Lewis,  Jr.,  Clerk  of  the  U.  S. 
Circuit  Court  of  Appeals  for  the  Third  Circuit ;  Hon.  Claude  M. 
Dean,  Clerk  of  the  U.  S.  Circuit  Court  of  Appeals,  for  the  Fourth 
Circuit;  Hon.  Frank  H.  Mortimer,  Clerk  of  the  U.  S.  Circuit 
Court  of  Appeals,  for  the  Fifth  Circuit ;  Hon.  Edward  M.  Hollo- 
way,  Clerk  of  the  U.  S.  Circuit  Court  of  Appeals,  for  the  Seventh 
Circuit;  Hon.  E.  E.  Koch,  Clerk  of  the  U.  S.  Circuit  Court  of 
Appeals,  for  the  Eighth  Circuit,  and  the  Hon.  F.  D.  Monckton, 
Clerk  of  the  U.  S.  Circuit  Court  of  Appeals,  for  the  Ninth  Cir- 
cuit, for  the  records  of  the  reported  cases  decided  in  their  re- 
spective courts,  which  they  were  kind  enough  to  send  to  the 
author  and  which  made  it  possible  for  him  to  compile  the  forms 
contained  in  the  third  volume  of  this  work. 

Elijah  N.  Zoline. 

New  York  City,  N.  Y.,  October  1,  1920. 


Iviii 


CONTENTS 


VOLUME  ONE 

PAGE 

Introduction v 

By  Honorable  Henry  Wade  Rogers,  Judge  op  the  United 
States  Circuit  Court  of  Appeals,  for  the  Second 
Circuit 

Preface xlix 

Table  of  Cases Ixxv 

CHAPTER  I 

Sections  1-7  a 

Power  of  Congress  to  Create  and  Define  Offenses  and  Pre- 
scribe THE  Jurisdiction  and  Procedure  Therefor  En- 
joining Criminal  Prosecutions 1 

CHAPTER  II 

Sections  8-14  a 

Jurisdiction  of  the  Federal  Courts 10 

CHAPTER  III 

Sections  15-17  c 

Due  Process  of  Law 18 

CHAPTER  IV 

Sections  18-31 

Arrest  without  Warrant 25 

lix 


CONTENTS 

CHAPTER  V 
Sections  32-43  a 

FAGB 

Venue    , 35 

CHAPTER  VI 

Sections  44-47 

Right  to  Counsel 45 

CHAPTER  VII 

Sections  48-62 

Arrest  on  Warrant 49 

CHAPTER  VIII 

Sections  63-64 

Speedy  and  Public  Trial 58 

CHAPTER  IX 

Sections  65-69 

Preliminary  Hearing 60 

CHAPTER  X 

Sections  70-76 

Confrontation  with  Witnesses 65 

CHAPTER  XI 

Sections  77-91 

Bail 68 

CHAPTER  XII 

Sections  92-103 
Removal  for  Trial  from  one   District  to  Another  under 

SeCIION  1014  OF  THE  REVISED  STATUTES  OF  UNITED  StATES      .         76 

Ix 


CONTENTS 

CHAPTER  XIII 

Sections  104-113  a 

PAGB 

Searches  and  Seizures 84 

CHAPTER  XIV 

Sections  114^-130 

Privileges  and  Immunities  against  Self-Incrimination  .    .    .    102 

CHAPTER  XV 

Sections  131-156 

Indictments  —  Part  I 118 

CHAPTER  XVI 

Sections  157-177 

Indictments  —  Part  II 135 

CHAPTER  XVII 

Sections  178-181 

Indictments  in  Several  Counts  —  Consolidation  —  Severance 

—  Separate  Trials.    Part  III 147 

CHAPTER  XVIII 

Sections  182-191 
Construction  and  Repeal  of  Penal  Statutes 154 

CHAPTER  XIX 

Sections  192-198 

Ex  Post  Facto  and  Bills  of  Attainder 162 

CHAPTER  XX 

Sections  199-207 

Statutes  of  Limitations , 167 

ki 


CONTENTS 

CHAPTER  XXI 
Sections  208-213 

PAGB 

Change  of  Venue 172 

CHAPTER  XXII 

Sections  214-224 

Arraignment  and  Plea 177 

CHAPTER  XXIII 

Sections  225-243 

Former  Jeopardy 184 

CHAPTER  XXIV 

Sections  244-250 

Pardon 19^ 

CHAPTER  XXV 

Sections  251-256 

Personal  Presence  of  Accused 200 

CHAPTER  XXVI 

Sections  257-265 

Bill  of  Particulars 204 

CHAPTER  XXVII 

Sections  266-275 

Jury  Trial  — Part  I 210 

CHAPTER  XXVIII 

Sections  276-282 

Jury  Trls.l  —  Part  II 215 

Ixii 


CONTENTS 

CHAPTER  XXIX 

Sections  283-287 

PAGE 

JUKT  Trial  —  Part  III 226 

CHAPTER  XXX 

Sections  288-296 

Conduct  of  Trial  Judge 233 

CHAPTER  XXXI 

Sections  297-299 

Conduct  of  District  Attorney 240 

CHAPTER  XXXII 

Sections  300-417 

Evidence 243 

CHAPTER  XXXIII 

Sections  418-422 

Motion  for  a  Directed  Verdict 350 

CHAPTER  XXXIV 

Sections  423-432 

Argument  of  United  States  Attorney .    355 

CHAPTER  XXXV 

Sections  433-446 

Charge  to  Jury 363 

CHAPTER  XXXVI 
Sections  447-456 

Verdict 374 

Ixiii 


CONTENTS 

CHAPTER  XXXVII 

Sections  457-463 

PAGE 

Motions  for  New  Trial 383 

CHAPTER  XXXVIII 

Sections  464-466 

Motion  in  Arrest  of  Judgment 387 

CHAPTER  XXXIX 

Sections  467-480 

Sentence  and  Judgment 390 

CHAPTER  XL 

Sections  481-506 

Parole  Act 401 

CHAPTER  XLI 

Sections  507-523 

Contempt 415 

CHAPTER  XLII 

Sections  524^-567 

Habeas  Corpus 429 

CHAPTER  XLIII 

Sections  568-574 

Review  of  Judgments  in  Criminal  Cases 453 

CHAPTER  XLIV 

Sections  575-624 

Extradition.    I.  International  Extradition 457 

Ixiv 


CONTENTS 

CHAPTER  XLV 
Sections  625-661 

PAOE 

Extradition.    II.  Interstate  Rendition 490 


VOLUME  TWO 

CHAPTER  XLVI 
Sections  662-669 
Criminal  Code,  Chapter  One 
Offenses  against  the  Existence  of  the  Government 

CHAPTER  XLVII 
Sections  670-679 
Criminal  Code,  Chapter  Two 
Offenses  against  Neutrality 


CHAPTER  XL VIII 

Sections  680-687 

Criminal  Code,  Chapter  Three 

Offenses  against  the  Elective  Franchise  and  Civil  Rights 

OF  Citizens 22 

CHAPTER  XLIX 

Sections  688-745 
Criminal  Code,  Chapter  Four 
Offenses  against  the  Operations  of  the  Government      .    .       30 

CHAPTER  L 

Sections  746-785 

Qriminal  Code,  Chapter  Five 

Offenses  Relating  to  Official  Duties 76 

kv 


CONTENTS 

CHAPTER  LI 

Sections  786-807 

Criminal  Code,  Chapter  Six 

PAOB 

Offenses  against  Public  Justice 101 

CHAPTER  LII 

Sections  808-839 

Criminal  Code,  Chapter  Seven 

Offenses  against  the  Currency,  Coinage,  etc 119 

CHAPTER  LIII 
Sections  840-892 
Criminal  Code,  Chapter  Eight 
Offenses  against  the  Postal  Service 147 

CHAPTER  LIV 

Sections  893-906 

Criminal  Code,  Chapter  Nine 

Offenses  against  Foreign  and  Interstate  Commerce    .    .    .    193 

CHAPTER  LV 

Sections  907-932 

Criminal  Code,  Chapter  Ten 

The  Slave  Trade  and  Peonage 208 

CHAPTER  LVI 

Sections  933-950 

Criminal  Code,  Chapter  Eleven 

Offenses  within  the  Admiralty  and  Maritime  and  the  Terri- 
torial Jurisdiction  of  the  United  States 219 

Ixvi 


CONTENTS 

CHAPTER  LVII 

Sections  951-971 

Criminal  Code,  Chapter  Twelve 

PAGE 

Piracy  and  Other  Offenses  upon  the  Seas 243 

CHAPTER  LVIII 
Sections  972-983 
Criminal  Code,  Chapter  Thirteen 
Certain  Offenses  in  the  Territories 255 

CHAPTER  LIX 

Sections  984^1001 

Criminal  Code,  Chapter  Fourteen 

General  and  Special  Provisions        261 

CHAPTER  LX 

Sections  1002-1006 

Criminal  Code,  Chapter  Fifteen 

Repealing  Provisions 271 

CHAPTER  LXI 

Sections  1007-1058 

Conspiracy 286 

CHAPTER  LXII 

Sections  1059-1067 

Use  of  Mails  to  Promote  Fil'^.uds 341 

CHAPTER  LXIII 

Section  1068 

Offenses  against  President  of  the  United  States    ....    363 

Ixvii 


CONTENTS 

CHAPTER  LXIV 
Sections  1069-1085 

PAGE 

Food  and  Drug  Acts 364 

CHAPTER  LXV 

Sections  1086-1104 

Narcotic  Drugs  Laws 381 

chaIpter  LXVI 

Sections  1105-1123 
White  Slave  Traffic  Act 402 

chapter  LXVII 

Sections  1124-1183 

Criminal  Liability  under  National  Bank  Act  and  Federal 

Reserve  Act 413 

CHAPTER  LXVIII 

Sections  1184-1190 

Bankruptcy 463 

CHAPTER  LXIX 

Sections   1191-1192 

Timber  and  Stone  Lands 468 

CHAPTER  LXX 

Sections  1193-1198 

Obstructions  and  Intrusions 473 

CHAPTER  LXXI 

Sections  1199-1200 

Radiographs 477 

Ixviii 


CONTENTS 

CHAPTER  LXXII 
Sections  1201-1206 

PAOB 

Pension  Laws 484 

CHAPTER  LXXIII 

Sections  1207-1211 

Eight-Hour  Law 492 

CHAPTER  LXXIV 

Sections  1212-1218 

Failure  to  Testify 496 

CHAPTER  LXXV 

Sections  1219-1230 

Foreign  Relations 501 

CHAPTER  LXXVI 

Sections  1231-1235 

Offenses  in  Connection  with  Emigration 508 

CHAPTER  LXXVII 

Sections  1236-1238 
Offenses  in  Connection  with  United  States  Census     .     .     .    513 

CHAPTER  LXXVIII 

Sections  1239-1240 

Smuggling 515 

CHAPTER  LXXIX 

Sections  1241-1252 

Shipping 520 

Ixix 


CONTENTS 

CHAPTER  LXXX 
Sections  1253-1254 

PAGE 

Citizenship 531 

CHAPTER  LXXXI 

Sections  1255-1257 

Miscellaneous  Postal  Violations 533 

CHAPTER  LXXXII 

Sections  1258-1259 
Patent  Law  and  Copyrights  Violations 535 

CHAPTER  LXXXIII 

Sections  1260-1262  a 
Receiverships  —  District  Attorneys  —  Appropriations       .    .    53d 

CHAPTER  LXXXIV 

Section  1263 

Dairy  Products 538 

CHAPTER  LXXXV 

Sections  1264^1357 
Federal  Anti-Trust  and  Interstate  Commerce  Acts     .    .    .    539 

CHAPTER  LXXXVI 

Sections  1358-1426 

National  Prohibition 642 

CHAPTER  LXXXVII 

Sections  1427-1434 

Miscellaneous  Acts 681 

Ixx 


/ 


CONTENTS 

CHAPTER  LXXXVIII 
Sections  1435-1462 

PAGE 

Oleomargarine       691 

CHAPTER  LXXXIX 

Section  1463 

The  Lever  Act 713 


VOLUME  THREE 

FORMS 

Group  I 

Numbers  1-19 

Combinations    and    Conspiracies  —  Restraint    of    Trade  — 

Sherman  Act 1 

Group  II 

Numbers  20-40 

Violations  of  Interstate  Commerce  Act 82 

Group  III 

Numbers  41-50 

National  Banking  Laws 176 

Group  IV 

Numbers  51-66 

Postal  Laws 302 

Group  V 
Numbers  67-72 

Search  Warrant  Proceedings 395 

ixxi 


CONTENTS 

Group  VI 
Numbers  73-82 

PAGE 

Conspiracy  to  Defraud  the  United  States       409 

Group  VII 

Numbers  83-87 

Espionage  Act 432 

Group  Ylll 

Number  88 

Bribery  —  Government's  Agents  Provoking  Offense    .    .    .    462 

Group  IX 

Number  89 

Treason 465 

Group  X 

Numbers  90-93 

Opium  and  Narcotics 482 

Group  XI 

Numbers  94r-100 

Contempt 487 

Group  XII 

Numbers  101-103  a 

Perjury 497 

Group  XIII 
Numbers  104-128 

Intoxicating  Liquors 526 

Ixxii 


CONTENTS 

Group  XIV 
Number  129 

PAOB 

Murder 550 

Group  XV 

Numbers  130-133 

Chinese 552 

Group  XVI 

Number  134 

Mann  Act 559 

Group  XVII 

Numbers  135-136 

Motion  to  Quash  because  of  a  Multiplicity  of  Indictments    563 

Group  XVIII 

Number  137 

Income  Tax  —  Internal  Revenue 567 

Table  of  Federal  Statutes  in  Chronological  Order     ,     .     .  569 

Table  of  Federal  Statutes  Cited  by  Popular  Names   .     .     ,  574 

Revised  Statutes 578 

Judicial  Code          579 

Constitution  of  the  United  States 579 

Extradition  Treaties 580 

State  Statutes,  etc 580 

English  Statutes 580 

General  Index        581 

Index  of  Forms 773 


kxiii 


TABLE   OF   CASES 


[References  are  to  sections] 


Aaron  Burr  Trial,  Fed.  Cas.  No. 

14692  e,  122 

Aaron  v.  United  States,  155  Fed. 

833,  405,  517 

Abbott  V.  Ross,  62  Me.  194,  689 

Abbott  Bros.  Co.  v.  United 
States,  242  Fed.  751, 

60,  62,  214,  1074 
Acker,  In  re,  66  Fed.  290,  24 

Aekley    v.    United    States,    200 

Fed.  217,  349,  872 

Actiesselskabet  Ingrid  v.  Central 
R.  R.  Co.  of  New  Jersey, 
216  Fed.  72,  893,  894 

Aczel  V.  United  States,  232  Fed. 

652,  680,  1013,  1039 

Adams  v.  New  York,  192  U.  S. 

585,  33,  105,  109 

V.  Shock,  104  Fed.  54,  418 

V.  United  States,  259  Fed. 

214,  363 

Addington  v.  United  States,  165 

U.  S.  184,  935 

Addis,  In  re,  252  Fed.  886,  671 

Addison  v.  People,  193  111.  405,  319 

Addyston  Pipe  &  Steel  Co.  v. 
United  States,  175  U.  S. 
211, 

1271,    1275,    1276,    1308, 
1314,  1315 
Adler,  In  re,  152  Fed.  422,  1186 

Adler  v.  United  States,  182  Fed. 
464, 
288,  293,  294,  430,  437,   1170 
Adutt,  In  re,  55  Fed.  376,  533 

.^olian   Co.   v.   Standard   Music 

Roll  Co.,  176  Fed.  811,         385 
^tna  Life  Ins.  Co.  v.  Ryan,  255 

Fed.  483,  339 

Agee  V.  State,  113  Alab.  52,  416 

Agnew  V.  United  States,  165 
U.  S.  3G, 

147,    276,     313,     314,     318, 
435,    441,    446,    453,    1150, 
1151,  1172,  1173 
Ahem  v.  United  States,  158  Fed. 

606,  374 


Alabama  Ry.  v.  Kuhn,  78  Miss. 

114,  31 

Alaska  Steamship  v.  International 
Longshoremen's  Ass'n,  236 
Fed.  964,  1030 

Alberty    v.    United    States,    162 

U.  S.  499,  352,  444,  989 

Aldrich,  In  re,  16  Fed.  369,  839 

Alexander  v.  United  States,  138 

U.  S.  353,  339,  343,  355,  405 

Alexis  V.  United  States,  129  Fed. 

60,  458,  856 

Alford  V.  State,  8  Texas  Appeal, 

545,  31 

Alkon  V.  United  States,  163  Fed. 

810,  1052 

Allen  V.  Greenlee,  2  Dev.  (N.  C.) 

370,  61 

V.  Kidd,  197  Mass.  256,  293 

V.  Lopinsky,  94  S.  E.  369,  18 

V.  United  States,  115  Fed.  3, 

387,  427 
V.  United  States,  164  U.  S. 
492, 

318,   352,   444,  448,   449, 
934,  935 
Allen's  Appeal,  119  Pa.  192,  1133 

Allis  V.  United  States,  155  U.  S. 
117, 

358,  360,  446,  448,   1151, 
1154 
Allison    V.    United    States,    160 

U.  S.  203,  288,  353,  439 

V.  United  States,  216  Fed. 

329,  168,  178,  179 

Ambrose  Light,  The,  25  Fed.  408, 

672,  951 
American  Banana  Co.  v.  United 

Fruit  Co.,  213  U.  S.  347,       666 
American  Biscuit  &  Mfg.  Co.  v. 

Klotz,  44  Fed.  721,  1299 

American  Fur  Co.  v.  United 
States,  2  Pet.  (U.  S.)  358, 

182,    1054 
American    Lithographic    Co.    v. 
Werckmeister,   221    U.   S. 
603,  120 

kxv 


TABLE    OF   CASES 


[References  are  to  sections] 


American  Mortgage  Co.  v.  Hop- 
per, 64  Fed.  553,  1191 
American  Press  Association  v. 
United  States,  245  Fed. 
91,  1280 
American  Publishing  Co.  v. 
Fisher,    166   U.   S.   464, 

274,  447 
American    School    of    Magnetic 
Healing    v.     McAnnulty, 
187  U.  S.  94,  1060 

American  Steel  Barrel   Co.,   Ex 

parte,  230  U.  S.  35,  212 

American  Sugar  Refining  Co.  v. 

Bidwell,  124  Fed.  677,  1240 

American  Trust  Co.  v.  Wallis,  126 

Fed.  464,  514 

Ammerman  v.  United  States,  216 

Fed.  326,  168,  179 

Anargyros,    S.,   v.  Anargyros    & 

Co.,  191  Fed.  208,  517 

Anderson,  In  re,  94  Fed.  487,  24 

Anderson    v.    Dunn,    6    Wheat. 

(U.  S.)  204,  611 

V.  Moyer,  Warden,  193  Fed. 

449,  178,  707,  853 

V.  United  States,  170  U.  S. 

481,  339,  341,  934,  935 

V.  United  States,  171    U.  S. 

604,  1303 

Andrews  v.  Swartz,  156  U.  S.  272,       542 
V.  United  States,  162  U.  S. 

420,  349,  872 

V.  United   States,  224   Fed. 

418,  466 

Angelus  v.  Sullivan,  246  Fed.  54, 

528,  538 
Angle  V.  Chicago,  St.  Paul,  etc. 

R.    Co.,    151    U.    S.    1,  247 

Apapas    V.    United    States,    233 

U.  S.  587,  989 

Appleyard  v.  Massachusetts,  203 

U.  S.  222,  626,  629,  652 

Arizona    &    N.    M.    Ry.    Co.    v. 

Clark,  207  Fed.  817,  446 

Armour   v.    North    Dakota,    240 

U.  S.  510,  1073 

Armour  Pkg.  Co.  v.  United  States, 

153  Fed.  1  16 

V.  United  States,  209  U.  S. 
66 

37,  162,  257,  465,  1347,  1.350, 
1351,  1352 
Armstrong  v.  United  States,   13 

Wall.  (U.  S.)  1.54,  244,  303 

Arnold  v.  Weil,  157  Fed.  429,  1019 

Asbestos   Co.   v.   Federal   Trade 

Commission,     204      Fed. 

500,  1341 

Aspinwall,  In  re,  7  Ben.  433,  405 

Ixxvi 


Astrom  v.  Hammond,  3  McLean, 

107,  191 

Atchison,  T.  &  S.  F.  Ry.  Co.  v. 

Meyers,  76  Fed.  443,  418 

V.  United    States,    170    Fed. 

250,  1356 

Athanasaw  v.  United  States,  227 

U.  S.  326,  1107,  1108 

Atlantic  Coast  Line  R.  R.  Co.  v. 

Goldsboro,  232  U.  S.  548,  4 

Atlantic  Transport  Co.  of  West 
Virginia  v.  Imbrovek,  234 
U.  S.  52,  933 

Atwell,  In  re,  140  Fed.  368,  403 

Atwell  V.  United  States,  162  Fed. 

97,  153,  513 

Aubrey,  In  re,  26  Fed.  848,  43 

August  V.  United  States,  257 
Fed.  388, 

299,  422,  425,  429,    32, 
461,700 
Austin  V.  Tennessee,  179  U.  S.  343,      309 
V.  United  States,   155  U.  S. 

417,  249 

Automatic   Musical   Co.,   In  re, 

204  Fed.  334,  68 

Ayers,  In  re,  123  U.  S.  443,         513,  536 

Babcock  v.  United  States,  34  Fed. 

873,  787 

Backus  V.  Owe  Sam  Goon,  235 

Fed.  847,  537 

Bacon,  In  re,  205  Fed.  545,  1185 

Bacon  v.  United  States,  97  Fed. 
35. 

109,  358,  411,  1154,  1177, 
1181 
V.  Walker,  204  U.  S.  311,  4 

Badders   v.    United    States,    240 

U.  S.  391,  162,  467,  1060 

Badger  2).  Reade,  39  Mich.  771,         59 
Baender   v.    United    States,    260 

Fed.  832,  824,  828,  829 

Baez,  Ex  parte,  177   U.  S.  378, 

627,  553 
Bailey  v.  Alabama,  219  U.  S.  219,  930 
Bain,  In  re,  121  U.  S.  1, 

16,  137,  156,  709 
Baird  v.  United  States,  196  Fed. 

778,  1030 

Baker  v.  Grice,  169  U.  S.  284,     528,  545 

V.  People,  105  111.  452,  218 

V.  Swigart,  196  Fed.  569,  7  a 

Baldwin  v.  Franks,  120  U.  S.  678, 

667,  680 
V.  United  States,    238  Fed. 

793,  1100 

Baldwin  Cooperative  Creamery 
Ass'n  V.  Williams.  233 
Fed.  607,  1455 


TABLE   OF   CASES 


[References  are  to  sections] 


Ball  V.  United  States,  147  Fed.  32,       395 
V.  United  States,  140  U.  S. 
118, 

140,  163,  251,  253,  296,  934 
V.  United  States,  103  U.  S. 

662,         219,240,414,447,474 
Ballew  V.  United  States,  160  U.  S. 

187,  325,  1203 

Balliet  v.  United  States,  129  Fed. 

689,  427 

Ballinger,  Ex  parte,  88  Fed.  781,       987 
Ballman    v.    Fagin,    200    U.  S. 

186,  107 

Baltimore  &  Ohio  R.  R.  Co.  v. 

Rambo,  59  Fed.  75,         361,  366 
V.  Interstate  Commerce 

Com'n,  221  U.  S.  612,  120 

Bandy    v.    United    States,    245 

Fed.  98,  300 

Bank  v.  State,  12  Ga.  475,  190 

Bank   of   Augusta   v.    Earle,    13 

Pet.  (U.  S.)  519,  120 

Bannon    v.    United    States,    156 

U.  S.  464,  260 

Bannon    &    Mulkey    v.    United 

States,  156  U.  S.  464, 

1035,  1040,  1047,  1054,  1055 
Baran  v.  Goodyear  Tire  &  Rub- 
ber Co.,  256  Fed.  571, 

1289,  1326,  1339 
Barlow  v.  United  States,  7  Pet. 

(U.  S.)  404,  1246 

Barnard   v.    United   States,    162 

Fed.  618,  343 

Barnes    v.    United    States,    166 

Fed.  113,  872 

Barney   v.   City   of   New   York, 

193  U.  S.  430,  680 

Barnum  v.  State,  15  Ohio,  717,  689 

Barrett  v.  Prince,  143   Fed.  302,     1186 
Barron    v.    Baltimore,    7    Pet. 

(U.S.),  243,  467 

Barry  v.  Snowden,  106  Fed.  571,       304 
Bartell    v.    United    States,    227 

U.  S.  427,  227,  872,  1063 

Bartholomew  v.   United   States, 

177  Fed.  902,  470,  531 

Bartlett   v.    United    States,    106 

Fed.  884,  786 

Bartley  v.  West,  29  Wise.  316,  27 

Baskin    v.    United    States,    209 

Fed.  740,  217,  786 

Bassett    v.    United    States,    137 

U.  S.  496,  363 

BassiDg  V.  Cady,  208  U.  S.  386, 

628,  632,  650 
Batchelor  v.  United  States,   156 

U.S.  426,  .       173,  1171 

Bate  Refrigerating  Co.  v.  Sulz- 
berger,   157   U.  S.   1,  183 


Bayard    v.    Lombard,  97  How. 

(U.  S.)  530,  523 

Baynes   v.   Brewster,    2    Queens 

Bench,  375  25 

Beaven  v.  Stuart,  250  Fed.  972,       405 
Beavers  v.  Haubert,  198  U.  S.  77,     63, 97 
V.  Henkel,  194  U.  S.  83, 

33,  56,  66,  94,  95,  99 
Becharias  v.  United  States,  208 

Fed.  143,  700 

Beckwith  v.  Bean,  98  U.  S.  266,       446 

V.  Philley,  6  Barn.  &  Cr.  635,  31 

Beinbert  v.   State,  53  Ala.  467,       689 

Belden  v.  United  States,  223  Fed. 

726,  180,  1060,  1063 

Bell,  Ex  parte,  240  Fed.  758,  542 

Bennett    v.    United    States,    194 

Fed.  630,  189,  416 

V.  United  States,  227   U.  S. 

333,  374,  435,  1107 

Benson,  In  re,  58  Fed.  962,  1039 

130  Fed.  486,  94 

131  Fed.  968,  1038 
Benson  v.  Henkel,  198  U.  S.  1, 

92,  94,  700 
V.  McMahon,  127  U.  S.  457, 

67,  587,  588,  589,  607 
V.  United  States,  146  U.  S. 

325,  362 

Bentall    v.    United    State.g,    262 

Fed.  744,  162 

Bergemann  v.  Backer,  157  U.  S. 

655,  530 

Bergeron  v.   Peyton,    106   Wise. 

377,  31 

Berkley  Peerage  Case,  4  Camp. 

401,  407 

Berkowitz  v.   United  States,  93 

Fed.  452,  229,  452,  1027 

Bernal  v.  United  States,  241  Fed. 

339,  459 

Bernstein  v.  United  States,  238 

Fed.  923,  1019,  1056 

Berryman  v.  United  States,  259 

Fed.  208,  1426 

Beshears,  In  re,  79  Fed.  70,  98 

Bessette  v.  W.  B.  Conkey  Co., 
194  U.  S.  324, 

238,  512,  522,  523 
Bettman   v.   United   States,   224 
Fed.  819, 

215,321,360,1061,1063,     1065 
Betts  V.  United  States,  132  Fed. 

228,  280 

Beyer  v.  United  States,  251  Fed. 

39,  466,  llOS 

Biddinger  v.  Commissioner  of 
Police,  City  of  New 
York,     245     U.    S.     128, 

530,  626,  629,  649 

Ixxvii 


TABLE    OF    CASES 


[References  are  to  sections] 


198 


41 
537 


Bigelow,  Ex  parte,  113  U.  S.  328,       530 
Bigelow    V.    Calumet    &    Hecla 
Mining  Co.,  167  Fed.  704, 

1302,  1314 
V.  Forrest,    9   Wall.   (U.  S.) 
339, 
Biggerstaff  v.  United  States,  260 

Fed.  926, 
Billings  V.  Sitner,  228  Fed.  315, 
Billingsley  v.  United  States,  178 

Fed.  657,  32,  1174 

V.  United   States,    249    Fed. 

331,  899',  993 

Bingham  v.  Bradley,  241   U.  S. 

511,  584,  611 

Binns  v.  United  States,  194  U.  S. 

486,  183 

Bird  V.  United  States,  180  U.  S. 

356,  354,  360,  934,  937 

V.  United  States,  187  U.  S. 

118,  352 

Birdseye,  Ex  parte,  244  Fed.  972, 

530,  534 
Bise  V.  United   States,  144  Fed. 

374,  361,  949 

Bishop    V.    United    States,    259 

Fed.  197,  1426 

Black,  Ex  parte,   147  Fed.  832, 

100,  1035,  1049 
Blackburn  v.  Crawford,  3  Wall. 

(U.  S.)  175, 
Blackham  v.  Gresham,   16  Fed. 

609, 
Blackman  v.  State,  80  Ga.  785, 
V.  United   States,    250    Fed. 
449, 
Blair,   Ex  parte,  253  Fed.    800, 

121,  812,  1218 
Blair  v.  United  States,  241  Fed. 
217, 
V.  United  States,  250  U.  S. 
273, 
Blake    v.    National    City    Bank, 
23  Wall.  (.U.  S.)  307, 
t).  United     States,    71    Fed. 
286, 
Blanton    v.    United    States,    213 

Fed.  320,       339,  435,  1061,  1062 
Blazekovic,   Ex  parte,  248  Fed. 

327,  538 

Bliss  V.  Reed,  106  Fed.  314,  460 

V.  United   States,    105   Fed. 

508,  234,  817 

Blitz  V.  United  States,  153  U.  S. 

308,  168,  171,  459,  464,  466 

Bloch  V.  United  States,  261  Fed. 

321, 
Bloom  V.  State,  68  Ark.  336, 
Bluefic-lds   S.    S.    Co.   v.    United 
Fruit  Co.,  243  Fed.  1, 


401 


842 
286 


234 


671 


134 


183 


801 


709 
33 


1314 


Blunt  V.  United  States,  255  Fed. 

332,  1092,  1093 

Board  of  Commissioners  v.  ^tna 

Life    Ins.    Co.,    90    Fed. 

222,  185, 469 

Board  of  Education  v.  Alliance 

Assur.  Co.,  159  Fed.  994,       301 
Board     of    Trade    of    City     of 

Chicago  V.  United  States, 

246  U.  S.  231,  1279 

Boardman,  In  re,  169  U.  S.  39, 

651,  564 
Boggs,  In  re,  45  Fed.  475,  229 

Bohanan  v.  Nebraska,  125  U.  S. 

692,  223 

Bolland    v.    United    States,    238 

Fed.  529,  331,  696 

BoUes  V.  Outing  Co.,  175  U.  S. 

262,  182 

Bollman,    Ex    parte,    4    Cranch 

(U.  S.)  75,  77,  529,  662 

Bolton    Castle,    The,    250    Fed. 

403,  323 

Bombarger    v.     United     States, 

219  Fed.  841,  872 

Bond  V.  United  States,  252  Fed. 

804,  899 

Bonfoey   v.    United    States,    252 

Fed.  802,  1061 

Bonner,  In  re,  151  U.  S.  242, 

240,  474,  501,  531,  948 
Boorvis,  In  re,  205  Fed.  401,  737 

Booth  V.  United  States,  139  Fed. 

252,  311 

Boren  v.  United  States,  144  Fed. 

801,  787,  1191 

Boske  V.  Comingore,   177  U.  S. 

459,  402,  545 

Bosselman  v.  United  States,  239 

Fed.  82,  374,  796 

Boston  &  R.  Elec.  St.  Ry.  Co.  v. 

Bemis   Car    Box   Co.,   98 

Fed.  121,  460 

Boston     Beer     Co.     v.     Massa- 
chusetts, 97  U.  S.  25,  4,  6 
Botsford   V.   United   States,   215 

Fed.  510,  470,  872,  873 

Bours  V.  United  States,  229  Fed. 

960,  872 

Bowers    v.    United    States,    148 

Fed.  379,  855 

V.   United   States,   244   Fed. 

641,  1060,  1061,  1064 

Bowman  v.  Chicago  &  N.  W.  Ry. 

Co.,  125  U.  S.  465,  1304 

Bovd,    In   re,    228  Fed.   1003,         1188 

Boyd  V.  Glucklich,  116  Fed.  131,       515 

V.  New    York    and    Harlem 

R.    R.    Co.,    220    Fed. 

174,  1335 


Ixxviii 


TABLE    OF   CASES 


[References  are  to  sections] 


Boyd  V.  United  States,  116  U.  S. 
616, 

15,      16,     17  a,      50,     104    a, 
104    b,     111,    114,    115,    116, 
135,  323,  426,  512,  513 
V.  United   States,  142  U.  S. 

450,  249,  356,  361 

Bradford  v.   United  States,    152 

Fed.  617,  1048,  1049,  1056 

Brady  v.  Cliicago  G.  W.  Ry.  Co., 

114  Fed.  100,  418 

Brafford   v.    United   States,    259 

Fed.  511,  693 

Bram  v.  United  States,  168  U.  S. 
532, 

325,  326,  336,  341,  389,  396 
Braun  &  Fitts  v.  Coyne,  125  Fed. 

331,  1436 

Brawner  v.  Irvin,  169  Fed.  964,       681 
Breese  v.  United  States,  106  Fed. 
680, 

261,   263,   358,    1154,    1169, 
1171 
V.  United  States,    108   Fed. 

804,  439 

V.  United    States,     23  Fed. 

824,  358,  1045,  1049 

V.  United  States,  226  U.  S.  1,       155 
Breitmayer  v.  United  States,  249 

Fed.  929,  320 

Bridgeman  v.  United  States,  140 

Fed.  577,  696 

Briggs  V.  People,  219  111.  330,  391 

Brigham  City  v.   Toltec  Ranch 

Co.,  101  Fed.  85,  523 

Brinkman    v.    Drolesbaugh,    119 

N.  E.  451,  61 

V.  Morgan,  253  Fed.  553, 

871,  879 
Briscoe  v.  Bank,  11  Pet.  (U.  S.) 

257,  193 

British    Consul    v.    The    Nancy, 

Fed.  Cas.  No.  1898,  673 

British  Prisoners,  1  Woodb.  &  M. 

66,  586 

Brittain  v.  Bank  of  London,  3  F. 

&  F.  465,  689 

Bromberger  v.  United  States,  128 

Fed.  .346,  291 

Bromley  v.  People,  150  111.  297,       416 
Brooklyn   Daily   Eagle   v.   Voor- 

hies,  181  Fed.  579,  898 

Brooks    V.    United    States,    146 

Fed.  223,  320,  1063 

Brown,  Ex  parte,  28  Fed.   653,       653 
Brown  v.  Elliott,  225  U.  S.  392, 

163, 1019,  1025,  1035,  1049 
V.  Hadwin,    182    Mich^   491,  61 

V.  Maryland,  12  Wheat.  419,      1304 
V.  People,  86  111.  239,  689 


Brown  v.  People,   173  111.  34,  415 

V.  State,  3  Tex.  Ct.  App.  294,         47 
V.  United  States,  142  Fed.  1, 

358,  393, 1057 
V.  United  States,  143  Fed.  60,  217 
V.  United  States,    146    Fed. 

219,  1063 

V.  United  States,    146    Fed. 

975,  948 

V.  United  States,  150  U.    S. 

93,  343,  375,  1054 

V.   United  States,   233   Fed. 

353,  300,  361 

V.   United  States,   257  Fed. 

46,  309,  933 

V.  Walker,  161  U.  S.  591, 

114,    114  a,    115,  115  a,  122, 

126,     128,     129,     134,    247, 

443 

Browne,  Ex  parte,  148  Fed.  68,       729 

Browne  v.  Chavez,  181  U.  S.  68,  84 

V.  United  States,  145  Fed.  1, 

1045,  1040,  1050,  1057 
Bruce  v.  Rayner,  124  Fed.  481,       653 
V.  United  States,    202    Fed. 

98,  306,  878 

Bryan  v.  Congdon,  86  Fed.  221,         59 
V.  Forsyth,  19  How.  (U.  S.) 

334,  309  b 

V.  United  States,    133    Fed. 

495,  359,  825,  829 

Bryant  v.    United    States,     167 

U.  S.  104,  533 

V.  United  States,  214  Fed.  51, 

240,  474,  531,  563,  564 
V.  United    States,    257   Fed. 

378,  667 

Buchanan  v.  United  States,  233 

Fed.  257,  312,  680 

V.  Warley,  245  U.  S.  60,  279 

Bucklin  v.    United    States,     159 

U.  S.  682,  454 

Buessell  v.  United  States,  decided 
April  10,  1919,  by  U.  S. 
C.  C.  A.  2d  Cir.,  569 

Bullant).  Granger,  63  Mich.  311,      450  a 
Bullard    v.    United    States,    245 

Fed.  837,  369,  370 

Burden  v.   State,    120  Ala.  388,       689 
Burdick   v.    United    States,    236 
U.  S.  79, 

125,   245,   246,   247,   248, 
249,  988 
Burford,    Ex    parte,    3    Cranch 

(U.  S.)  448,  51,  58 

Burkhardt,  In  re,  33  Fed.  25,  93,         855 
Burns,  In  re,  113  Fed.  987,  531 

Burns  v.   Erben,  40  N.   Y.  403,  25 

Burr  Trial,  Aaron,  Fed.  Cas.  No. 

14692  e,  122 

Ixxix 


TABLE    OF    CASES 


[References  are  to  sections] 


Burrell  v.   Montana,    194   U.   S. 

572,  119,  327,  333 

Burroughs  v.  Eastman,  101  Mich. 

419.  18 

Burrus,  In  re,  136  U.  S.  586, 

536,  542 
Burt  V.  State,  48  S.   (Ala.)  851,       451 
Burton  v.  New  York  Central  & 
Hudson  River  R.  R.  Co., 
245  U.  S.  315,  634 

V.  United    States,    142    Fed. 

57,  422,  872 

V.  United  States,  196  U.  S. 

283,  448,  449,  774 

V.  United  States,  202  U.    S. 
344, 

37,   139,  157,  182,  235,  237, 
468,  774 
V.  Wilkes,  66  N.  C.  604,        450  a 
Butler  V.  Evening  Post  Co.,  148 

Fed.  821,  280 

V.  State,  34  Ark.  480,  370 

V.  Watkins,  13  WaU.  (U.  S.) 

456,  358 

Byron,  In  re,  18  Fed.  722,  101 

Cabrera,     Ex    parte,     1     Wash. 

(C.  C.)  2.32,  1219 

Caha  V.  United  States,  152  U.  S. 

211,  157,  306 

Calder  v.  Bull,  3  Dall.  (U.  S.)  386, 

192,  193 
Calhoun  v.   Thompson,   56  Ala. 

166,  115  a 

California  Paving  Co.  v.  Molitor, 

113  U.  S.  609,  507 

Callahan  v.   United  States,   240 

Fed.  683,  340 

Callan  v.  Wilson,  127  U.  S.  540, 

16,  266,  268,  270,  272, 
1026,  1307 
Cameron  v.   United  States,   231 

U.  S.  710,  117,  127,  128 

Caminetti  v.  United  States,  242 

U.  S.  470,  374,  389,  1108 

Campbell  v.  Sherman,  35  Wise. 

103,  27 

V.  United    States,    221   Fed. 

186,  276,  309 

Canal  &  Claiborne  St.  R.  R.  Co. 

0.  Hart,  114  U.  S.  654,  466 

Cancemi   v.   People,    16    N.    Y. 

501,  286 

Cannon    v.    United    States,    116 

U.  S.  55,  974,  975 

Capital  Traction  Co.  v.  Hof,  174 

U.  S.  1,  274,  447 

Carfer  v.  C;ildwell,  200  U.  S.  293,       542 
Cargo  ex  Ladv  Essex,  The,  39 

Fed.  765,  1242 

Ixxx 


Carino  v.   Insular  Government, 

212  U.  S.  449,  271 

Carlisle    v.     United    States,     16 

Wall.  (U.  S.)  147,  249 

V.  United    States,    194    Fed. 

827,  322,  432 

Carnes,  In  re,  31  Fed.  397,  279 

Carondelet,  The,  37  Fed.  799,  672 

Carpenter    v.    Pennsylvania,    17 

How.  (U.  S.)  456,  193 

V.  Winn,  221  U.  S.  533,  268 

Carrara  Paint  Co.  Agency  v.  Car- 
rara Paint  Co.,  137  Fed. 
319,  446 

Carter  v.  McClaughry,  183  U.  S. 

365,  235,  468,  748 

V.  New  Orleans  &  N.  E.  R. 

Co.,  143  Fed.  99,  205 

Carver    v.    United    States,    160 

U.  S.  553,  408 

V.  United  States,  164  U.  S. 

694,  408 

Caslin    v.    McCord,   116    Tenn. 

690,  31 

Cassett,  Ex  parte,  18  Fed.  86,  474 

Castle     V.     Bullard,     23     How. 

(U.  S.)   172,  358,  446 

Castro  V.  De  Uriarte,  16  Fed.  93,       588 
Chadwick  v.  Chadwick,  52  Mich. 

549,  450  a 

V.  United  States,    141   Fed. 

225,  299,  425,  470,  1030 

Chaffee    v.    United    States,     18 

Wall.  ^U.  S.)  516,  313 

Chambers  v.  United  States,  237 
Fed.  520, 

432,  459,  463,  1060,  1062 
Chambliss  v.  United  States,  218 

Fed.  154,  319,  428,  445 

Chandler  v.  Rutherford,  101  Fed. 

775,  18,  28 

Chapa  V.  United  States,  261  Fed. 

775,  373  a,  1065 

Chaplin    v.    United    States,    193 

Fed.  879,  1008,  1036 

Chapman,    Ex    parte,    153    Fed. 

371,  107 

Chapman,  In  re,  156  U.  S.  211, 

812,  1212 
166  U.  S.  661,  1212 

Chapman    v.    United    States,    5 

App.  (D.  C.)  122,  1212 

V.  United    States,   164  U.  S. 

436,  1212 

Charles    v.    United    States,    213 

Fed.  707,  1061 

Charles  Morgan,  The,  115  U.  S. 

69,  369 

Charlotte,  etc.  R.  R.  v.  Gibbcs, 

142  U.  S.  386,  17  c 


TABLE   OF   CASES 


[References  are  to  sections] 


Charlton,  Ex  parte,  185  Fed.  880, 

219,   579,   580,   581,   587, 
588,  592,  597,  606 
Charlton  v.  Kelly,  229  U.  S.  447, 

579,   580,   581,   587,   588, 
589,  592,  597,  607,  620 
Chasen,  In  re,  140  U.  S.  200,  1136 

Chattanooga    Foundry    &    Pipe 

Works    V.     Atlanta,     203 

U.  S.  390,  205 

Chesapeake   &    Delaware   Canal 

Co.     V.     United     States, 

decided  June  19,  1919,        309  6 
Chesapeake  &  Ohio  Fuel  Co.  v. 

United   States,    115    Fed. 

610,  1.302,  1308,  1314 

Chesapeake  &  P.  Teleph.  Co.  v. 

Manning,  186  U.  S.  238,  183 

Chesseman,  Inre,  49N.  J.L.  115,  513 
Chetwood,  In  re,  165  U.  S.  443,  532 
Chicago  &  Alton  R.   R.  Co.  v. 

Kirby,  225  U.  S.  155,  1350 

V.  Tranbarger,  238  U.  S.  67,  4 

Chicago  &  Eastern  Illinois  R.  Co. 

V.  Randolph,  199  111.  126,       395 
Chicago     Board     of     Trade     v. 

United  States,  246  U.  S. 

231,  1279 

Chicago,    B.    &    Q.    Ry.    Co.    v. 

Chicago,  166  U.  S.  226,  17  c 

V.  Giles,  235  Fed.  804,  901 

V.  Illinois,  200  U.  S.  561,  4 

V.  McGuire,  219  U.  S.  549,  4 

Chicago  City  Ry.  Co.  v.  Cooney, 

95  111.  App.  471,  288 

Chicago  Directory  Co.  v.  United 

States  Directory  Co.,  123 

Fed.  194,  238 

Chicago,  etc.  Coal  Co.  v.  People, 

214  111.  421,  191 

Chicago,  etc.   R.   Co.  v.   United 

States,  220  U.  S.  559,  1343 

Chicago  Great  Western  Ry.  Co. 

V.  Roddy,  131  Fed.  712,  418 

Chicago,  Milwaukee  &  St.  Paul 

Ry.   Co.  V.   Bennett,   181 

Fed.  799,  418 

V.  Chamberlain,     253     Fed. 

429,  339 

Chicago,  St.  P.  M.  &  O.  Ry.  Co. 

V.  United  States,  162  Fed. 

835,  1352, 1356 

Chinese  Laborers  on  Shipboard, 

Case  of,  13  Fed.  291,  956 

Ching  V.  United  States,  118  Fed. 

538,  1039 

Chin   Loy  You,   Ex   parte,   223 

Fed.  833,  ^  46 

Chin  Quock  Wah,  Ex  parte,  224 

Fed.  138,  46 


Chin  Sing  v.  United  States,  227 

Fed.  397,  1086,  1087 

Chin  Yow  v.  United  States,  208 

U.  S.  8,  524,  532,  537,  551 

Chirac  v.   Reinicker,   11   Wheat. 

(U.  S.)  280,  405 

Chitwood  V.  United  States,   153 

Fed.  551,  341,  358,  856 

Chodkowski  v.  United  States,  194 

Fed.  858,  1185 

Chow  Lov  V.  United  States,  112 

Fed.  354,  537 

Choy  Gam  v.  Backus,  223  Fed. 

487,  551 

Christie  Street  Commission  Co. 

V.    United      States,      136 

Fed.  326,  469 

Christopoulo    v.    United    States, 

230  Fed.  788,  279, 389,  740 

Chung  Kin  Tow,  Ex  parte,  218 

Fed.  185,  532,  636,  647,  654 

Chimg   Kin   Tow  v.   Flynn,   218 

Fed.  64,  534,  646,  650 

Church     of     Holy     Trinity     v. 

United  States,  143  U.  S. 

457,  183 

City  of  Mexico,  The,  24  Fed.  33,       672 

28  Fed. 148,  672 

32  Fed.  105,  672 

City  of  New  Orleans  v.  New  York 

Mail    Steamship    Co.,    20 

Wall.  (U.  S.)  387,  523 

City    Realty    Co.    v.    Robinson 

Contracting       Co.,       183 

Fed.   176,  185,  469 

Civil  Rights  Cases,  109  U.  S.  3, 

680,  681 
Clark  V.  Allen,  114  Fed.  374, 

476,  478,  479 
V.  United    States,  202    Fed. 

740,  872 

V.  United   States,    211    Fed. 

916,  310,  906 

V.  United    States,  245   Fed. 

112,  405,  420,  422 

Clark  Distilling  Co.  v.  Western 

Maryland    Ry.    Co.,    242 

U.  S.  311,  2 

Clarke,  Ex  parte,  100  U.  S.  399,       529 
Clarke  v.  May,  2  Gray,  410,  61 

Classen,  matter  of,  140  U.  S.  200, 

90,  137 
Classon    v.    United    States,    142 

U.  S.  140,  470 

Clawson   v.    United   States,    114 

U.  S.  477,  276,  287 

Clay  V.  Waters,  178  Fed.  385, 

513,  1188 
Clement  v.    United    States,    149 

Fed.  305,  464,  465, 1175 

Ixxxi 


TABLE    OF    CASES 


[References  are  to  sections] 


Cliff  V.  United  States,  195  U.  S. 

159,  1442 

Clifford  V.  Williams,  131  Fed.  100,       542 
Close  V.  Olney,  1  Denio,  319,  115  a 

Clune  V.  United  States,  159  U.  S. 

590,  1026,  1034,  1054 

Clyatt  V.  United  States,  197  U.  S. 

207,  422,  446,  930 

Coatz,  Ex  parte,  242  Fed.  1003,         528 
Coca-Cola  Co.  •!;.  Butler  &  Sons, 

229,  Fed.  224,  1339 

Cochran  v.  Toher,  14  Minn.  385 

(Gil.  293),  19 

V.  United  States,   147  Fed. 

206,  219,  948 

V.  United  States,  157  U.  S. 

286,  139,  318,  441,  1140, 

1172,  1177,  1178 
Coe  V.  Errol,  116  U.  S.  517,  1306 

Coffey    V.    United    States,     116 

U.  S.  436,  234 

Coffin  V.  Varila,  8  Tex.  Cir.  App. 

417,  61 

V.  United  States,  156  U.  S. 

452,     '  257,  263,  313, 

Sl8,  441,  1170,  1172,  1179 
V.  United   States,  162  U.  S. 

664,  446,  1170 

Cohen,  Ex  parte,  254  Fed.  711,         528 
Cohen  v.  United  States,  157  Fed. 

651,  1018,  1032,  1041 

V.  United  States,   170    Fed. 

715,  128,  326 

V.  United  States,  214  Fed.  23, 

67,  300,  363,  1111 
Cohens    v.    Virginia,    6    Wheat. 

(U.  S.)  264,  14 

Cohn  V.  United  States,  258  Fed. 

355,  411,  709 

Coke   V.    Illinois    Central    R.    R. 

Co.,  255  Fed.  190,  1209 

Colburn   v.    United    States,    223 

Fed.  590,  1061,  1063 

Cole  V.  German  Savings  &  Loan 

Soc,  124  Fed.  113,  418 

Coleman,  In  re,  15  Blatchf.  406,       739 
Coleman  v.  Tennessee,  97  U.  S. 

509,  230 

V.  United    States,   239    Fed. 

711,  851 

Collins,  Ex  parte,  151  Fed.  358,         551 
Collins  V.  Johnston,  237  U.  S.  502, 

467,  528,  001,  615 
V.  Morgan,  243  Fed.  405, 

528,  530,  531 
V.  United  States,  253  Fed.  609,      786 
Colson    V.    Commonwealth,    110 

Ky.  233,  689 

Colt  V.  United  States,  190  Fed. 

305,  358,  359,  450,  1065 

Ixxxii 


Columbia-Knickerbocker     Trust 

Co.  V.  Abbot,  247  Fed.  833,  280 

Comingore,  In  re,  96  Fed.  552,  402 
Commercial  State  Bank  v.  Moore, 

227  Fed.  19,  385 
Commerford  v.  Thompson,  1  Fed. 

417,  874 
Commissioners  of  Marion  County 

V.  Clark,  94  U.  S.  278,  418 
Commonwealth    v.    Andrews,    2 

Mass.  409,  467 

V.  Barry,  116  Mass.  1,  1133 

V.  Billings,  167  Mass.  283,  416 

V.  Cochran,  143  Ky.  807,  689 

V.  Costley,  118  Mass.  2,  33 

V.  Crittenden,  82  Ken.  164,  370 
V.  Crotty,  10  Allen  (Mass.), 

403,  61 

V.  Dallagher,  118  Mass.  386,  689 

V.  Dillon,  4  Dall.  116,  332 

V.  Dunleay,  157  Mass.  386,  689 

V.  Edwards,  135  Pa.  474,  1057 

V.  Felto,  101  Mass.  204,  1133 

V.  Giles,  1  Gray,  466,  264 

V.  Hinds,  101  Mass.  209,  689 
V.  Hunt,    4     Mete.    (Mass.) 

Ill,  171 

V.  Jackson,  132  Mass.  16,  359 
V.  Kennard,  8  Pick.  (Mass.) 

133,  61 

V.  Ketner,  92  Pa.  372,  1133 

V.  Knapp,  26  Mass.  496,  45 

V.  Luberg,  94  Pa.  85,  1133 
V.  McGowan,  2  Pars.  Eq.  341,  1057 
V.  Nicely,  130  Pa.  261,          297,  423 

V.  Roberts,  Brightly,  109,  114  a 
V.  Shoemaker,   240   Pa.    St. 

255,  297,  423 

V.  Snelling,  15  Pick.  (Mass.) 

321,  264 
V.  Southern  Express  Co.,  160 

Ky.  1,  120 

V.  Tenney,  97  Mass.  50,  1133 

V.  Thompson,  116  Mass.  348,  168 
V.  Tuck,    20    Pick.    (Mass.) 

356,  176 
V.  Webster,  5  Cush.  (Mass.) 

320,  442 
Commonwealth   of   Kentucky  v. 
Dennison,         24         How. 
(U.  S.)  66,        626,  643,  644,  652 
Compton  V.   State  of  Alabama, 

214  U.  S.  1,  638,  640,  641 

Conetto    V.    United    States,    251 

Fed.  42,  1185 
Confiscation      Cases,      7     Wall. 

(U.  S.)  454,  8  a 

20  Wall.  lU.  S.)  92,  249 
Conn    V.    Chadwick    &    Co.,    17 

Florida,  439,  213 


TABLE   OF    CASES 


[References  are  to  sections] 


Connecticut    Mutual    Life    Ins. 

Co.    V.  Ellis,    89   111.    516,       399 
Connella  v.  Haskell,  158  Fed.  285, 

530,  543 
Connors   v.    United    States,    158 

U.  S.  408, 

168,  217,  218,  257,  286,  464 
Conrad    v.    United    States,    127 

Fed.  798,  862,  1039,  1041 

Conserva,  The,  38  Fed.  431,  672 

Considine  v.  United  States,   112 

Fed.  342,  280,  410,  853,  1041 

Consolidated    Rendering    Co.    v. 

Vermont,   207  U  S.  641,       513 
Cook,  In  re,  49  Fed.  833,  650 

Cook  D.  Hastings,  150  Mich.  289,         24 
V.  United   States,  138  U.  S. 

157,  32,  33,  35,  195 

Cook    County     Natl.    Bank    v. 

United  States,   107  U.  S. 

445,  469 
Cooley  V.  Morgan,  221  Fed.  252, 

530,  893 
Coomer    v.    United    States,    213 

Fed.  1,  262,  872 

Cooper,  Ex  parte,  143  U.  S.  472,  40 
Cooper*.  United  States,  232  Fed. 

81,         298, 312,  1049,  1062.  1065 
V.  United  States,  247  Fed.  45, 

154,  464 
Coopers^^lle  Cooperative  Cream- 
ery   Co.   r.    Lemon,    163 

Fed.  145,  1455 

Cope  V.  Cope,  137  U.  S.  688,  175 

Copper  River  &  N.  W.  Ry.  Co. 

V.  Heney,  211    Fed.    459,       446 
V.  Reeder,  211  Fed.  280,  446 

Coquitlam,  The,  77  Fed.  744,  1242 
Corbin  &  Co.  v.  United  States, 

181  Fed.  296,  420 

Corej^  V.   Independent   Ice  Co., 

207  Fed.  459,  1316 

Corn  Products   Refining  Co.  v. 

Eddy,  249  U.  S.  427,  4 

Cornell  v.  Coyne,  192  U.  S.  418,  1429 
Corning,  In  re,  51  Fed.  205,  100,  1317 
Cortes,  In  re,  136  U.  S.  330,  528 

Coulson  V.  Disborough,  L.  R.  2 

Queens   Bench    Div.    316,       390 
Counselman    v.    Hitchcock,    142 

U.  S.  547,  115,  117,  118,  120,  126 
County  of  Lewis  and  Clarke  v. 

United    States,    77    Fed. 

732,  502 

County  of  Mobile  ?).  Kimball,  102 

U.  S.  691,  1304 

Couts  V.  United  States,  249  Fed. 

595,  _  796 

Couture   v.    United   States,   256 

Fed.  525,  708 


Cox  V.  People,  82  111.  191,  453 

V.  State,  66  Miss.  14,  689 

Coy,  In  re,  127  U.  S.  731, 

680,  1013,  1058 
Coyne  v.  United  States,  246  Fed. 

120,  368 

Craemer  v.  State  of  Washington, 

168  U.  S.  124,  549 

Craft  V.  Schafer,  153  Fed.  175,         1436 
Crafton    v.    United    States,    206 

U.  S.  333,  934 

Crain  v.  United  States,  162  U.  S. 

625,  179,  214,  218,  690,  806 

Crane  v.  United  States,  259  Fed. 

480,  1062,  1063 

Crawford  v.   United  States,  212 

U.  S.  183, 

286,  310,  312,  374,  432,  446, 
1047,  1054 
Creekmore  v.  United  States,  237 

Fed.  743,   512,516,517,521,996 
Crespin    v.    United    States,    168 

U.  S.  208,  303 

Cross,  In  re,  43  Fed.  517,  584 

Cross  V.  Burke,  146  U.  S.  82,  563 

V.  North  Carolina,  132  U.  S. 

131,  188,  689 

V.  United  States,  2  Hayw.  & 

H.  290,  801 

Crossley  v.  California,  168  U.  S. 

640,  862,  987 

Crow  Dog,  Ex  parte,  109  U.  S. 

556,  184 

Crowley   v.    United    States,    194 

U.  S.  461,  147,  279 

Cruikshank  v.  United  States,  92 

U.  S.  542, 

6,  12,  138,  139,  160,  171,  173, 
174,  189,  680,  1041,  1047 
Crumpton  v.  United  States,  138 

U.  S.  361,  299,  425 

Cudahy  Packing  Co.  v.  Skoumal, 

125  Fed.  470,  432 

Culver  V.  United  States,  257  Fed. 

163,  298 

Cummings  v.   Missouri,  4  Wall. 

(U.  S.)  277,  192,  196,  197 

Cummins  v.   United  States,  232 

Fed.  844, 

312,  419,  433,  439.  1147,  1151 
Cundell  v.  Pratt,  Moody  &  Mal- 

kin,  108,  114  a 

Cunningham  v.  People,  195  111. 

550,  293,  391 

Cuomo  v.  United  States,  231  Fed. 

116,  372 

Curley  v.  United  States,  130  Fed. 

1.  689,  1037 

Curtin  v.  LTnited  States,  236  U. 

S.  96,  249 

Ixxxiii 


TABLE    OF    CASES 


[References  are  to  sections] 


Curtis,    Gold    T.,    Ex   parte,    3 

Minn.  274,  213 

Cuyler  v.  Atlantic  &  N.  C.  R.  R. 

Co.,  131  Fed.  95,  531 

Daeche  v.  United  States,  250  Fed. 

566,  331,  957, 959 

Dainese  v.  Hale,  91  U.  S.  13,  305 

Dallemagne  v.  Moisan,  197  U.  S. 

169,  530 

Dalton  V.  United  States,  154  Fed. 

461,  318,  320 

Dana,  In  re,  68  Fed.  886,  100 

Danciger  v.  Cooley,  248  U.  S.  319, 

899,  900 
V.  Stone,  188  Fed.  510,  900 

Daniels  v.  United  States,  196  Fed. 

459,  189,  786 

Davey  v.  United  States,  208  Fed. 

237,  136,  796 

Davidson    v.    New    Orleans,    96 

U.  S.  97,  15 

Davis  V.  Beason,  133  U.  S.  333,       974 

V.  Berry,  216  Fed.  413,  197 

«.  Reid,  5  Sim.  443,  115  a 

V.  United    States,    37   App. 

D.  C.  126,  320 

V.  United    States,   107  Fed. 

753,  680,  1030,  1050 

V.  United  States,  160   U.  S. 

469,  313, 337,  338,  441 

V.  United  States,  165  U.  S. 

373,  337 

V.  United  States,  247    Fed. 

394,  64,  289 

Davis's  Case,   7  Fed.  Cas.   No. 

3621  a,  663 

Davis'   Estate,   In  re,    11   Mon- 
tana, 1,  213 
Davis    &    F.    Mfg.    Co.    v.    Los 

Angeles,    189    U.    S. '207,        7  a 
Davison,  In  re,  143  Fed.  673,  615 

Davison    v.   Sealskins,    2   Paine, 

324,  951 

Dawkins  v.  Rokeby,  L.  R.  7  H. 

L.  744,  402 

Dawson,  Ex  parte,  83  Fed.  306,         653 
Dawson,  In  re,  101  Fed.  253,  613 

Day  V.  Micou,  18  Wall.  (U.  S.) 

156,  198 

r.  United  States,   229    Fed. 

634,  358 

Dealey    v.    United    States,    152 
U.  S.  639, 

233, 1019,  1035,  1039,  1040, 
1041, 1047,  1049 
Dean  v.  United  States,  246  Fed. 

568,  324,  342,  418,  879,  993 

Debs,  In  re,  158  U.  S.  604, 

613,  618.  623 

Ixxxiv 


De  Genaro  v.  Johnson,  249  Fed. 

604,  630 

De  Gignac  v.  United  States,  113 

Fed.  197,  872 

De    Lacey     v.     United     States, 

24  Fed.  626,  17,  802 

Delano  v.  United  States,  220  Fed. 

635,  1344 

De  Lemos  v.  United  States,  91 

Fed.  497,  690,  809, 812 

Delgado,  In  re,  140  U.  S.  586,  536 

Demolli   v.    United    States,    144 

Fed.  363,  160,  465,  872 

De  Moss  V.  United  States,  250 

Fed.  87,  319,  428,  445 

Den  V.  Hoboken  Land  &  Imp. 

Co.,     18    How.     (U.     S.) 

272,  104  b,  268 

Denell,  In  re,  100  Fed.  633,  515 

Denning   v.    United   States,   247 

Fed.  463,  300,  363, 1111 

De  Orozco  v.  United  States,  237 

Fed.  1008,  674 

Depew  V.  United  States,  255  Fed. 

539,  1060 
Detroit,  etc.  Ry.  v.  Kimball,  211 

Fed.  633,  280 

Deveridge  v.  Sheldon,  83  111.  390,         27 
Devlin  v.  United  States,  12  Ct. 

CI.  266,  475 

Diaz  V.  United  States,  223  U.  S. 

442,  71,  251,  271,  456 

Dickey,  Ex  parte,  204  Fed.  322,         538 
Dickinson  v.  United  States,  159 

Fed.  801,  137,  275,  1171 

Diggs  V.  United  States,  220  Fed. 

545,         426,  427,  443,  1108,  1111 
V.  United  States,  242    U.  S. 

470,  374 

Dillard  v.  United  States,  141  Fed. 

303,  178 

Dillingham  v.  Booker,  163  Fed. 

696,  538 

Dillon,  In  re,  7  Fed.  Cas.  No.  710,         47 
Dimick  v.  Downs,  82  111.  570,  371 

Dimmick  v.  Tompkins,  194  U.  S. 

540,  530 
V.  United  States,    116    Fed. 

825,  325,  461,  696 

V.  United    States,    121   Fed. 

638,        426,  428,  445,  748,  752 
Dimmig,  Ex  parte,  74  Cal.  164,  56 

Dimond  v.  Shine,  199  U.  S.  88,       1035 
Dinehiirt,  Ex  parte,  188  Fed.  858, 

698,  699 
Dobbins  v.  Los  Angeles,  195  U.  S. 

223,  6,  7  a 

Dodge  V.  United  States,  258  Fed. 

300,  254,  288 

Doig,  In  re,  4  Fed.  193,  943 


TABLE   OF   CASES 


(References  are  to  sections] 


Dolan  V.  United  States,  123  Fed. 

62,  286,  434 

V.  United  States,    133    Fed. 

440,         178,  232,  280,  738,  739 
Dominici    v.    United    States,    72 

Fed.  46,  306 

Donaldson  x.  United  States,  208 

Fed.  4,  432 

Doniphan  v.  Lehman,   179  Fed. 

173,  513 

Donnelly  v.   United  States,  228 

U.  S.  243,  334,  375,  407 

Doo  Woon,  In  re,  18  Fed.  898,         555 
Dorr  V.  United  States,  195  U.  S. 

138,  271 

Dorsey  v.  United  States,  101  Fed. 

746,  358, 1154,  1178 

Dosset  V.  United  States,  248  Fed. 

902,  812 

Dostal,  Ex  parte,  243  Fed.  664,         538 
Dougherty  v.  United  States,  108 

Fed.  56,  1440 

Doughty  v.  De  Armared,  46  Atl. 

838,  222 

Dow  V.  United  States,  82  Fed. 

904, 

1155.  1166,  1169,  1172, 1175 
Dowdell   V.    Ignited    States,    221 

U.S.  325,  70,154,251,255,271 
Downing  v.  Brown,  3  Colo.  571.  689 
Drehman  v.  Stifle,  8  Wall.    (U. 

S.)  595,  197 

Drennon  v.  People,  10  Mich.  169,    104  b 
Drew  V.  Thaw,  235  U.  S.  432, 

530,  628,  637,  655,  1035 
V.  United    States,    192   Fed. 

854,  1033 

Dueber  Watch-Case  Mfg.  Co.  v. 

Howard  Watch  &  Clock 

Co.,  66  Fed.  637,  1289 

Duehay  v.  Thompson,  223  Fed. 

305,  481,  490 

Duff  V.  United  States,  185  Fed. 

101,  418 

Duluth   St.    Ry.   Co.  v.   Speaks, 

204  Fed.  573,  446 

Dunbar    v.    United    States,    156 

U.   S.   185, 

216,  217.  263,  410,  1240 
Duncan   v.  Missouri,    152    U.  S. 

377,  192 

Dunlop  V.  United  States,  165  U. 

S.  486, 

257,258,261,262,318,431. 

871,  872 

Dunn,  Ex  parte,  250  Fed.  871,         549 

Dunn.  Matter  of,  212  U.  S.  374,         303 

Dunn  V.  People,  172  111.  582,  391 

V.  United    States,    238"  Fed. 

608,  276, 279 


Durland    v.    United    States,    161 

U.  S.  306, 

227,  257,  258,  259,  1060. 1066 
Durrant,  In  re,  84  Fed.  314,  308 

Dutcher  v.  State,  16  Nebr.  30.  1057 

Dwinnell   v.   United  States,    186 

Fed.  754,    1008,  1035,  1039,  1041 
Dwj'er  V.  United  States,  170  Fed. 

160.  157,  459 

Dyar  v.  United  States,  186  Fed. 

614,  224,  356,  357 

Dj'er  V.  Ellington,  126  N.  C.  941,       190 

Eagle  V.  Nowlin,  94  Fed.  646,  1436 

Easley  v.  Kellon,  14  Wall.  279.  720 

Easterday  v.  McCarthy,  256  Fed. 

651,  1019 

Eastern  States  Ret.  Lum.  Deal. 

Assn.    V.    United    States, 

234  U.  S.  600. 

1271,  1278,  1288,  1309,  1335 
Eastman     v.     Armstrong     Bryd 

Music      Co.,      212      Fed. 

662,  874 

Easton  v.  Iowa.  188  U.  S.  220,         1133 
East  Tenn.    V.   &  G.  R.  Co.  v. 

Atlanta     &    F.    R.     Co., 

49    Fed.    608.  39 

Eaton  V.  State  of  West  Virginia, 

91  Fed.  760,  650 

Eberling   v.    Morgan,    237   U.   S. 

625.  235.  468,  707,  850 

Edgington  v.  United  States,  164 

U.  S.  361,       319  a,  428,  445,  696 
Edward  R.  West,  The,  212  Fed. 

287,  952 

Edwards  v.   Commonwealth,  78 

Va.  39,  249 

V.  United    States,    223    Fed. 

309,  680 

V.  United   States,    249    Fed. 

686,  358,  1061,  1065 

Eilenbecker  v.  District  Court  of 

Plymouth  Co.,  134  U.  S. 

31,  267,  518 

Eisenberg  v.  United  States,  261 

Fed.  598,  696 

Elder  v.  United  States,  243  Fed. 

84,  1054 

Elias  V.  Ramirez,  215  U.  S.  398,  622 

Elliott   Machine  Co.  v.  Center, 

227  Fed.  126,  1339 

Ellis  D.  United  States,  206  U.  S. 

246,  513 

Emanuel  v.   United   States,    196 

Fed.  317,       280,  281. 1061. 10C2 
Enders  v.  United  States.  187  Fed. 

754.  1451 

English    V.    United    States,    116 

Fed.  625,  710 

Ixxxv 


TABLE    OF    CASES 


[References  are  to  sections] 


Eno,  In  re,  54  Fed.  669,  1133 

Enright  v.  Gibson,  219  111.  650,  31 

Ensign  v.  Pennsylvania,  227  U. 

S.  592,  115,325,467 

Enterprise     Saving     Association 

V.  Zumstein,  67  Fed.  1000,  874 
Entick    V.    Carrington,    etc-    19 

Howell's  State  Trials,  1029 ,  104  a 
Epstein    v.    United    States,    196 

Fed.  354,  786,  787 

Erbaugh   v.    United   States,    173 

Fed.  433,  1060 

Erber  v.  United  States,  234  Fed. 

221,  357,  374,  1054,  1062 

Erickson  v.  Hodges,  179  Fed.  177,       551 
Estes  V.  United  States,  225  Fed. 

980,  307 

V.  United    States,    227   Fed. 

818,  216 

Etheredge  v.  United  States,  186 

Fed.  434,  16 

Evans  v.  United  States,  153  U.  S. 

584,  160,  172,  218,  1147,  1171 
Ewers  v.  Weaver,  182  Fed.  713,  1436 
Ewing  V.  United  States,  240  Fed. 

241,  80 

Ezeta,  In  re,  62  Fed.  972,  586 

Fain  v.  United  States,  209  Fed. 

525, 

343,  1029,  10.39,  1047,  1053, 
1054 
Fair,  In  re,  100  Fed.  149,  21 

Fairbanks    Co.,    Ex    parte,    194 

Fed.  978,  209,  210 

Faire  v.  State,  58  Ala.  74,  290 

Fall  V.  United  States,  209  Fed. 

547,  1037,  1053 

Falls  V.  City  of  Sperry,  68  Nebr. 

420,  N       450 

Farley,  Ex  parte,  40  Fed.  66,     147,  551 
Farmer    v.    United    States,    223 

Fed.  903, 

358,  359,  360,  1050,  1060, 1061, 
1062,  1065 
Farmers'  Bank  v.  Whinfield,  24 

Wend.  (N.  Y.)  419,  450  a 

Farmers'     &     Mechanics'     Natl. 

Bk.  V.  Bearing,  91  U.  S. 

29,  187 

Farrel  v.  United  States,  110  Fed. 

944,  939 

Farris  v.  People,  129  111.  521,  370 

Fassett,  In  re,  142  U.  S.  479,  528 

Faulkner  v.   United  States,   157 

Fed.  840,  1060 

Faust  V.  United  States,  163  U.  S. 

452,  169 

Fcder  -o.  United  States,  257  Fed. 

694,  1057 

Ixxxvi 


Federal    Trade    Commission    v. 

Gratz,  258  Fed.  314,  1342 

Feener  v.  United  States,  249  Fed. 

425,  386,  416 

Feldstcin,  In  re,  103  Fed.  269,     123,  128 
Felix  V.  United  States,  186  Fed. 

685,  680 

Felton  V.  United  States,  96  U.  S. 

699,  162 

Felts  V.  Murphy,  201  U.  S.  123,      17  h 
Ferguson   v.    United    States,    72 

Nebr.  350,  370 

Field,  Ex  parte,  9  Fed.  Cas.  No. 

4761,  61 

Field  V.  Barber  Asphalt  Paving 

Co.,  194  U.  S.  618,  1276 

Fielder  v.  United  States,  227  Fed. 

832,  350 

Fields  v.  United  States,  221  Fed. 

242,  389,  407 

Filasto  V.  United  States,  211  Fed. 

329,  370 

Filer  v.  Steele,  228  Fed.  242, 

526,  528,  551 
Findley  v.  Smith,  42  W.  Va.  299,  213 
Fink  V.  O'NeiL  106  U.  S.  272,  479 
Finnegan  v.   United  States,  231 

Fed.  561,  1053 

First  National  Bank  of  Anamoose 

V.  United  States,  206  Fed. 

374,  175,  900 

First    Nat.    Gold    Min.    Co.    v. 

Altvater,    149    Fed.   393,       418 
Firtgerald     v.     Champneys,     2 

Johns  &  H.,  54,  184 

Fish  V.  United  States,  215  Fed. 

544,  356,  357,  360,  961 

Fisher  v.  McGirr,  1  Gray,  45,  61 

Fisk,  Ex  parte,  113  U.  S.  713,  513 

Fitter  v.  United  States,  258  Fed. 

567,  297,  423 

Fitts  V.  McGhee,  172  U.  S.  516,        7  a 
Fitzpatrick  v.  United  States,  178 

U.  S.  304, 

137,  343,  385,  388,  427,  468, 
991,  1054 
Flagg  V.  United  States,  233  Fed. 

481,  105,  1065 

FlaspoUer  v.  United  States,  205 

Fed.  1006,  1108 

Fletcher  v.  Peck,  6  Cranch  (U.  S.) 

87,  192,  193,  198 

Fliashnick  v.  United  States,  223 

Fed.  736,  856 

Flickinger  v.  United  States,  150 

Fed.  1,  451,  1141,  1170 

Florcn  v.  United  States,  186  Fed. 

961,  139,  872 

Flower  v.  United  States,  116  Fed. 

241,  315,  331 


TABLE   OF   CASES 


[References  are  to  sections] 


Floyd  t>.  State,  7  Tex.  215,  115  a 

Foard  Co.  v.  Maryland,  219  Fed. 

827,  893 

Folsom    V.    United    States,    IGO 

U.  S.  121,  1136 

Fomby  v.  State,  87  Ala.  36,  689 

Fong  Yue  Ting  v.  United  States, 

149  U.  S.  698,  537 

Fontana   v.    United   States,   262 

Fed.  283,  16,  131,  139,  174 

Food  Conservation  Act,   In  re, 

254  Fed.  893,  111,  187,  234 

Foot  V.  Buchanan,  113  Fed.  156, 

114,  122,  1329 
Forcy  v.  State,  60  Tex.  206,  689 

Ford  V.  United  States,  12  Ariz.  23,     1030 
Foreman  i'.   United  States,   255 

Fed.  621,  1092, 1093 

Foster  v.  United  States,  178  Fed. 

165,  412,  1060,  1061 

V.  United    States,    188    Fed. 

305,       293,  294,  434,  438,  439 
V.  United   States,    253    Fed. 

481,  812 

T.  United    States,  256    Fed. 

207,  886 

Four  Hundred  and  Forty-Three 
Cans  Frozen  Egg  Product 
V.  United  States,  226  U.  S. 
172,  1082 

Fox,  Ex  parte,  236  Fed.  861,  744 

Fox  V.  Ohio,  5  How.  (U.  S.)  410, 

188,  229,  230 
Fraina  v.  United  States,  255  Fed. 

28,  993 

France  v.  United  States,  164  U.  S. 

676,  160,  182,  898 

Francis    v.    United    States,    152 

Fed.  155,  1058 

V.  United  States,  188  U.  S. 

375,  898 

Frank  v.  Mangum,  237  U.  S.  309, 

528,  532,  542,  545,  551 
Frankel,  In  re,  184  Fed.  539,  612 

Frankfurt  v.  United  States,  231 

Fed. 903,  1041 

Franklin  v.  South  Carolina,  218 

U.  S.  161,  279 

V.  United   States,   193    Fed. 

334,  397 

V.  United    States,  216  U.  S. 

559,  950 

Frederick,  In  re,  149  U.  S.  70, 

528,  545 
Freed  v.  Central  Trust  Co.  of  111., 

215  Fed.  873,  623 

Freeman  v.   United  States,   227 

Fed.  732,  269,  274,  468, 470 

V.  United  States,  243  Fed. 

353,  468,  1065 


Fremont    v.    United    States,    17 

How.  (U.  S.)  542,  303 

French  e.  Barber  Asphalt  Paving 

Co.,  181  U.  S.  324,  15 

Friedman,  In  re,  164  Fed.  131,  1030 
Fries,  Case  of,  Fed.  Cas.  No.  5127,  662 
Fries.Case.Wharton's  St.  Tr.  482,  333 
Frisbie  v.  United  States,  157  U.  S. 

160,         132,  133,  164,  1203,  1206 
Frohwerk  v.  United  States,  249 

U.  S.  2014, 

1035,  1040,  1042,  1047 
Frost  V.  Wenie,  157  U.  S.  46,  185,  469 
Frye  v.  Bank  of  Illinois,   11  111. 

367,  371 

Fudera,  Ex  parte,  162  Fed.  591, 

584,  590 
Fuller  V.  State,  68  Tex.  Cr.  Rep. 

571,  450  a 

Furman  r.  Nichol,  8  Wall.  (U.  S.) 

44,  304 

Fyke  v.  United  States,  2.54  Fed- 

226,  1093,  1099,  1100 

Gaillard    v.    Laxton,    2   Best   & 

Smith  Q.  B.  Repts.  363,  26 

Gaines  v.  Relf,  12  How.    (U.  S.) 

472,  309  b 

Galbreath  v.  United  States,  257 

Fed.  648, 

1147,  1153,  1154,  1181 
Gallagher  v.  United  States,   144 

Fed.  87,  162,308,311,810 

Gallot  V.  United  States,  87  Fed. 

446,  283 

Gamewell   Fire-Alarm  Tel.    Co., 

In  re,  73  Fed.  908,  460 

Gandolfo  v.   State,   11   Ohio  St. 

114,  319  a 

Gantt  V.  United  States,  108  Fed. 

61,  1035,  1036 

Gardner   v.    United   States,    230 

Fed.  575,  1060,  1063,  1066 

Garland,  Ex  parte,  71  U.  S.  333, 

47,  247,  249,  361 
Garland  v.  Washington,  232  U.  S. 

642,  214 

Garner  v.  State,  76  Miss.  515,  370 

Garnier   v.   Squiers,   62   Kansas, 

321,  31 

Garrigan  v.   United  States,    163 

Fed.  16,  318,  513 

Garst  V.  United  States,  180  Fed. 

339,  319 

Gavieres  v.   United   States,   220 

U.  S.  338,  235,  271,  468 

Gayon  v.  McCarthy  (U.  S.  Sup. 

Ct.  Mar.  1,  1920),  93 

Gee  Woe  v.   United  States,  250 

Fed.  428,  314,  324 

kxxvii 


TABLE    OF    CASES 


[References  are  to  sections] 


Gegiow  V.  Uhl,  239  U.  S.  3,  537 

Geiger  v.  United  States,  162  Fed. 

844,  1141 

Geisler,  Ex  parte,  50  Fed.  411, 

824,  987 
Gelston  v.  Hoyt,  3  Wheat.  (U.  S.) 

246,  672,  675 

Gelzenleuchter   v.  Niemeyer,  64 

Wis.  316,  61 

Gerling  v.  Baltimore,  151  U.  S. 

673,  304 

German   v.    United    States,    120 

Fed.  666,  338 

Giacomo,  In  re,  12  Blatch.  391, 

197,  584 
Gibbons    v.    Ogden,    9    Wheat. 

(U.  S.)  1,  1,  1304,  1305 

Giblin  v.  McMullen,  L.  R.  2  P.  C. 

Apps.  335,  418 

Gibson  v.  Mississippi,  162  U.  S. 

565,  192,  194,  279 

Gilmer  v.  Higley,  110  U.  S.  47, 

382,  385 
Gilson  V.  United  States,  258  Fed. 

588,  446 

Gladstone  v.  United  States,  248 

Fed.  117,  130 

Glaser,  Ex  parte,  176  Fed.  702, 

588,  622 
Glaser  v.  United  States,  224  Fed. 

84,  1074,  1081 

Glasgow,  Ex  parte,  195  Fed.  780,       213 
Glasgow  V.  Moyer,  225  U.  S.  420, 

529,  530 
Glass  V.  United  States,  222  Fed. 

773,  874 

Glenn,  Ex  parte,  111  Fed.  257, 

226,  231 
Glickstein  v.  United  States,  222 

U.  S.  139,  126,  127,  128 

Glover  v.  United  States,  147  Fed. 

426, 

313,  318,  350,  361,  366,  391 
Glucksman  v.  Henkel,  221  U.  S. 

608,    '  579,  584,  598,  600 

Gobbet  V.  Grey,  4  Ex.  729,  19 

GofT  V.  United  States,  257  Fed. 

294,  331 

Gold    T.    Curtis,    Ex    parte,    3 

Minn.  274,  213 

Goldman  v.   United  States,  220 

Fed.  57,  422,  1061,  1065 

V.  United  States,  245  U.  S. 

474,  993,  1036 

Goldsby  v.    United     States,    160 

v.  S.  70,  350 

Goldsmith  v.  Valentine,  36  App. 

(D.  C.)  63,  563 

Goldstein  v.   United  States,  256 

Fed.  813.  33 

Ixxxviii 


Goll  V.  United  States,  166  Fed. 

419,  1440 

Gompera  v.  Buck's  Stove  & 
Range  Co.,  221  U.  S. 
418, 

512,  516,  517,  521,  523,  1271 
V.  United  States,  233  U.  S. 

604,  200,  201,  523 

Goode  V.  United  States,  159  U.  S. 

663,  349,  855,  856 

Goodman  v.  People,  228  111.  154,       689 
Good  Shot  V.  United  States,  104 

Fed.  257,  468 

Gordon    v.    Commrs.    Dearborn 

County,  52  Ind.  322,  45 

V.  United  States,    254    Fed. 

53,  428,  445 

Gorham  Mfg.  Co.  v.  Emery- 
Bird-Thayer  Dry-Goods 
Co.,  92  Fed.  774,  613 

Gould  V.  United  States,  209  Fed. 
730, 

342,  395,  422,  1060,  1062,  1063, 
1065 
Gouyet,  Ex  parte,  175  Fed.  230,       640 
Graber,  Ex  parte,  247  Fed.  882, 

17,  530 
Graff  V.  State,  37  Ind.  353,  112 

Grafton   v.    United   States,    206 

U.  S. 333,  230,  234 

Graham,  Ex  parte,  216  Fed.  813, 

631,  632,  637 
Graham,  In  re,  138  U.  S.  461,  531 

Grand  Rapids  &  I.  Ry.  Co.  v. 
United  States,  212  Fed. 
577,  1352 

Grant  v.  United  States,  227  U.  S. 

74,  116,  523 

V.  United  States,    252    Fed. 

692,  899 

Graves  v.  United  States,  150  U.  S. 

118,  293,323,425,429 

V.  United  States,  165  U.  S. 

323,  1172 

Gray,  Ex  parte,  4  Wash.  (C.  C.) 

410,  69 

Great  Atlantic  &  Pacific  Tea  Co. 
V.  Cream  of  Wheat  Co., 
227  Fed.  46,  1339 

Great  Northern  P.ic.  S.  S.  Co.  v. 
Rainier  Brewing  Co., 
255  Fed.  762,  901 

Great  Northern  Ry.  Co.  v. 
United  States,  155  Fed. 
945,  1350 

V.  United  States,  208  U.  S. 

452,  190,  1004 

Green,  In  re,  134  U.  S.  377,  987 

Green     v.     Commonwealth,     12 

Allen  (Mass.),  155,  471 


TABLE    OF   CASES 


[References  are  to  sections] 


Green  v.  Elbert,  63  Fed.  308,  682 

V.  State,  97  Miss.  834,  296 

V.  United  States,    150   Fed. 

560,  738,  740 

Greenberg,  In  re,  lOG  Fed.  496,     11S5 
Greene,  In  re,  52  Fed.  104, 

99, 100, 157, 1290, 1299, 1316, 
1337 
Greene  v.  Biddle,  8  Wheat.  (U,  S.) 

88,  104  b 

V.  Henkel,  183  U.  S.  249, 

94,  97,  100,  101 
V.  McDougall,  136  Fed.  618,         94 
V.  United  States,    154    Fed. 
401, 

202,  578,  584,  585,  603,  605, 
696,  748 
Greenwald,  In  re,  77  Fed.  590, 

479,  1058,  1240 
Greer  v.  United  States,  240  Fed. 

320,  319,  428,  445 

V.  United  States,  245  U.  S. 

559,  317,  319 

Gregory,   Matter  of,  219  U.  S. 

210,  530 

Grenada  Lumber  Co.  v.  Missis- 
sippi, 217  U.  S.  433,  1307 
Grenshaw,    Ex   uarte,    15   Peter 

(U.  S.)  119,.-  475 

Grenshaw  v.  Tenn.,  1    Mart.  & 

Yerg.  122,  235 

Gretsch  v.  United  States,  231  Fed. 

57,  37 

V.   United  States,   242  Fed. 

897,  374 

Grier  v.   Tucker,    150  Fed.  658,     1436 
Griesedieck  Bros.  Brewery  Co.  v. 

Moore,  262  Fed.  582,         7  a,  27 
Griffin,  Ex  parte,  237  Fed.  445,     1253 
Griffin  v.   State,    96    Miss.   309,       689 
V.  United  States,  248  Fed.  6, 

872,  873 
Griggs  V.  United  States,  158  Fed. 

572,  316,  442 

Grimley,  In  re,  137  U.  S.  147,  538 

Grimm  v.  United  States,  156  U.  S. 

604,  349,  872 

Grin,  In  re,  112  Fed.  790,  594 

Grin  V.  Shine,  187  U.  S.  181, 

101,  576,  580,    587,    588, 
591,  594,  598,  622 
Gross    V.    North    Carolina,    132 

U.  S.  131,  807 

Grotan  v.  Fresel,  20  111.  292,  27 

Gruher  v.  United  States,  255  Fed. 

474,  1035 

Grunberg  v.  United  States,  145 

Fed.  81,  '  1035 

Guaranty  Sav.  Bank  v.  Bladow, 

176  U.  S.  448,  1191 


Guaranty  Trust  Co.  of  New  York 
V.  North  Chicago  St. 
R.  R.  Co.,  130  Fed.  801,  613 

Guinn  v.  United  States,  228  Fed. 

103,  680 

V.  United  States,  238  U.  S. 

347,  680 

Gulf,  Colorado  &  Santa  Fe  Ry. 
V.  Dennis,  224  U.  S.  503, 

190,  1004 
V.  Ellis,  165  U.  S.  150,  17  c 

V.  State  of  Texas,  72  Texas, 

404,  '       309 

GuHano,  In  re,  156  Fed.  420,  740 

Gund  Brewing  Co.  v.  United 
States,  204  Fed.  17, 

168,  179,  900 
V.  United   States,  206   Fed. 

386,  1042 

Gurinsky  v.  United  States,  259 

Fed.  378,  708 

Gut  V.  Minnesota,  9  Wall.  (U.  S.) 

35,  195 

Gytl,  Ex  parte,  210  Fed.  918,     532,  564 

Haas  V.  Henkel,    166  Fed.  621, 

561,  700 
V.  Henkel,  216  U.  S.  462, 

33,  97,  689,  1015,  1037 
Hackfeld  &  Co.  v.  United  States, 

197  U.  S.  442,  157 

Haddox  v.  Richardson,  168  Fed. 

635,  479 

Hafer  v.  Cincinnati,  Hamilton  & 
Dayton  R.  R.  Co.,  4  Ohio 
D.  C.  P.  &  P.  (Laning) 
487,  309 

Hagar  v.  Reclamation  Distr.,  Ill 

U.  S.  701,  268 

Hair  v.  United  States,  240  Fed. 

333,  215,  342,  1065 

Hale,  In  re,  139  Fed.  496,  1329 

In  re,  206  Fed.  856,  1187 

Hale  V.  Henkel,  201  U.  S.  43, 

17  c,    104  b,    113  a,    118,    120, 
124,    126,    132,    134,  135,   154, 
1392 
Hall  V.  United  States,  150  U.  S. 

76,  297, 425 

V.  United   States,  168  U.  S. 

632,  856 

V.  United    States,    235    Fed. 

869,        356,  357,  358,  360,  441 
V.  United   States,    256  Fed. 

748,  298,  428,  429,  445 

Halligan  v.  Marcil,  208  Fed.  403, 

484,  486 
V.  Wayne,  179  Fed.  112,  468 

Hallock    V.    United    States,    185 

Fed.  417,  280,  787 

Ixxxix 


TABLE    OF    CASES 


[References  are  to  sections] 


Hallowell  v.  United  States,  253 

Fed.  865,  440 

Hamburg  -  American  Steam 

Packet     Co.     v.      United 
States,     250     Fed.     747, 

321,  323 
Hamilton  v.  Rathbone,  175  U.  S. 

414,  183 

V.  United   States,  26    D.  C. 

382,  182 

Hammer  v.  Dagenhart,  247  U. 
S.  251, 

1,  3,  7  a,  1275,  1305,  1306 
V.  United    States,    249    Fed. 

336,  1092 

Hammon  v.  Hill,  228  Fed.  999,         551 
Hanauer  v.  Doane,  12  Wall.  (U. 

S.)  342,  664 

Hanges   v.    Whitfield,    209    Fed. 

675,  532,  551 

Hanish  v.  United  States,  227  Fed. 

584,  426,  906 

Hanley  v.  United  States,  123  Fed. 

849,  374 

Hannah  v.  Steinberger,  6  Blatchf. 

520,  24 

Hannibal  &  St.  Joseph  R.  R.  Co. 

V.  Husen,  95  U.  S.  465,  5 

Hans  Nielsen,  Petitioner,  131 
U.  S.  176, 

227,   228,   235,  467,  468,  528, 
530,  531,  542,  974 
Hanson    v.    United    States,    157 

Fed.  749,  872 

Hardesty  v.   United  States,   168 

Fed.  25,  1451 

V.  United    States,    184   Fed. 

269,  90 

Hardy  v.  United  States,  3  App. 

D.  C.  35,  329 

V.  United   States,  186  U.  S. 

224,  327,  333,  1048 

V.  United    States,    256    Fed. 

284,  1051 

Hargis  v.   Begley,   23  L.   R.  A. 

(n.  8.)  136,  87 

Hark,  In  re,  136  Fed.  986,  128 

Harkrader  v.  Wadley,  172  U.  S. 

148,  7  a 

Harlan  v.  McGourin,  218  U.  S. 

442,  247,  528,  530,  531,  1014 

Harless  v.  United  States,  92  Fed. 

353,  265 

Harness  v.  Steele,  159  Ind.  280,  29 

Harper  v.  Endert,  103  Fed.  911,         862 
V.  United    States,    170    Fed. 

.385,  1177,  1178 

Harriman  v.  Interstate  Com- 
merce Commission,  211 
U.  S.  407,  610 


Harrington  v.   Minor,   42  Calif. 

165,  290 

Harris,  In  re,  164  Fed.  292,  128 

In  re,  221  U.  S.  274,  128 

Harris    v.    Hardman,    14    How. 

(U.  S.)  344,  475 

V.  Rosenberger,  145  Fed.  449,      1061 
V.  United     States,    4    Okla. 

Crim.  App.  377,  214 

V.  United   States,  227  U.  S. 

340,  1107 

Harrison    v.    Moyer,    224    Fed. 

224,  1035 

V.  United    States,  163  U.  S. 

140,  280,  858 

V.  United    States,  200  Fed. 
662, 
311,  342,  415,  420,  463,  1060, 
1065,  1066 
V.  Vose,  9  How.  (U.  S.)  372,     1242 
Harrold  v.  Oklahoma,   169  Fed. 

47,  325,  326,  329,  385 

Hart,  Ex  parte,  63  Fed.  249, 

626,  636,  638,  639,  640, 
650,  653 
Ex  parte,  157  Fed.  130,       950,  978 
Hart  V.   United  States,  84  Fed. 

799,  674 

V.  United   States,    183  Fed. 

368,  411,  1437,  1438 

V.  United    States,    240  Fed. 

911,  1056,  1063,  1066 

Hartman    v.    Commonwealth,    5 

Pa.  60,  1034 

V.  United  States,  168  Fed.  30, 

178, 218,  1069,  1437 
Hartzell  v.  Com.,  40  Pa.  462,  283 

V.  United    States,    83    Fed. 

1002;  1436 

Harvey  v.  United  States,  126  Fed. 

357.  872 

V.  United    States,   159    Fed. 

419,  451,  470 

Haskell,  In  re,  52  Fed.  795,  551 

Hastings  v.    Murchie,   219   Fed. 

83,  16,  93,  97 

Hastings  &  Dakota  R.  R.  Co.  v. 

Whitney,    132  U.  S.   357,      1216 
HauRh  V.  United  States,  173  Fed. 

54,  413 

Haughcr  v.   United   States,    173 

Fed. 54,  407 

Haupt  V.  Utah,  110  U.  S.  574,  294 

Hauser  v.  Biebcr,  271  Mo.  326,  18 

V.  People,  210  111.  253,  290 

Hawkins  v.   United   States,    116 

Fed.  569,  284,  293 

Hawley  v.  Diller,  178  U.  S.  476,        1191 
Haws  V.   Victoria   Copper   Min. 

Co.,  160  U.  S.  303,  459 


XC 


TABLE    OF    CASES 


[References  are  to  sections] 


Hay  V.  Justice,  24  L.  R.  (Q.  B. 

D.)  561,  249 

Hayes  v.  Fischer,  102  U.  S.  121,         523 
V.  United    States,    169    Fed. 

101,  318,  420 

Haynes  v.  United  States,  10  Fed. 

817,  680 

V.  United  States,    101    Fed. 

818,  480 

Hays  V.  United  States,  169  Fed. 

101,  1172 

V.  United   States,  231    Fed. 

lOG,  300,  374 

Heard  v.  United  States,  255  Fed. 

829,  375,  382,  383,  384, 385 

Hedderly  v.  United  States,   193 
Fed.  561, 

201,  418,  1008,  1048,  1049 
Heike  v.  United  States,  192  Fed. 
83, 

996, 1003,  1004,  1040,  1329 
V.  United  States,  217   U.  S. 

423,  126 

V.  United    States,  227  U.  S. 
131, 
122, 126,  180,  219,  730,  1010, 
1025,  1026,  1050,  1055,  1056, 
1329 
Heim  v.  United  States,  47  App. 

(D.  C.)  485,  220 

Heinze  v.  United  States,  181  Fed. 

322,  412,  796 

Heitler    v.    United    States,    244 

Fed.  140,  1110,  1111 

Heller  v.  Ilwaco  Mill  &  Lumber 

Co.,  178  Fed.  Ill,  513 

Helwig    V.    United    States,    188 

U.  S.  605,  182 

Hemmer  v.   United   States,   204 

Fed.  898,  469 

Hendee    v.    United    States,    22 

Court  Claims,  134,  746 

Henderson  v.  State,  14  Tex.  503,       689 
Hcndrey   v.    United    States,    233 

Fed.  5,    385, 395,  440,  1060, 1065 
Hendricks  v.  Gonzalez,  67  Fed. 

351,  678 

V.  United  States,  223  U.  S. 

178,  134,  136,  787 

Hendrickson    v.    United    States, 

249  Fed.  34,  181,  279 

Henry,    In    re,    29    How.    Prac. 

(N.  Y.)  185,  19 

Henry  v.  Harris,  191  Fed.  868,  213 

V.  Henkel,  207  Fed.  805,  1212 

V.  Henkel,  235  U.  S.  219, 

94,  101,  527,  530,  545,  812 
V.  Sowles,  28  Fed.  481,     .  760 

V.  Speer,  201  Fed.  869,  209 

T.  State,  35  Ohio  St.  128,  689 


Herndon  v.  Chicago,  R.  I.  &  P. 

R.  Co.,  218  U.  S.  135,  7  a 

Herskovitz,  In  re,  136  Fed.  713, 

598,  604,  607 
Hertz  V.  Woodman,  218  U.  S.  205, 

190,  1004 
Hess,  In  re,  134  Fed.  109, 

107,  123,  128 
Hewitt,  Ex  parte.  Fed.  Cas.  No. 

0442,  531 

Hibbard   v.    United    States,    172 

Fed.  66,     293,  318,  323,  341,  342, 
1065 
Hibbs,  Ex  parte,  26  Fed.  421,  879 

Hickey  v.  United  States,  168  Fed. 

536,  937 

Hickman  v.  Jones,  9  Wall.   (U. 

S.)  201,  418 

Hickory   v.    United   States,    151 

U.  S.  303,  181,  345,  377 

V.  United   States,  160  U.  S. 
408, 

352,  434,  438,  439,  444,  446 
Hicks  V.  United  States,  150  U.  S. 

442,  439,  443 

Higgins    V.    United    States,    185 

Fed.  710,  425,  428,  432,  445 

Hilando  v.  Commonwealth,   111 

Pa.  State,  1,  231 

Hillegass  v.   United  States,    183 

Fed.  199,  464 

Hillman    v.    United    States,    192 

Fed.  264,  154 

Hirsch,  In  re,  74  Fed.  928,  402 

Hoagland  v.  Canfield,   160  Fed. 

146,  309 

Hocking  Valley  Ry.  Co.  v. 
United  States,  210  Fed. 
735,  1350 

Hodges    V.    United    States,    203 

U.  S.  1,  680,  681 

Hodson    V.    United    States,    250 

Fed.  421,  380,  422 

Hoffstot,  Ex  parte,  180  Fed.  240, 

628,  632,  638 
Hoiles  V.  United  States,  3  Mac- 
Arthur,  370,  467 
Hoke  V.  People,  122  111.  511,               1133 
V.  United   States,  227  U.  S. 

308,  1105,  1107 

Holden  v.  Hardy,  169  U.  S.  366, 

44,  467 
Hollister  v.   United   States,    145 

Fed.  773,  84,  990 

V.  Zion's  Co-operative  Mer- 
cantile Institution,  111 
U.  S.  62,  839 

Holmgren  ».  United  States,  217 
U.  S.  509, 

298,  374,  417,  459,  465,  741 

xci 


TABLE    OF    CASES 


[References  are  to  sections] 


Holsman   v.   United  States,   248 

Fed.  193,  342.  385 

Holt  V.  State,  9  Tex.  Ct.  App. 

571,  47 

V.  United  States,  218  U.  S. 
245 

109,  115,  154,  292,  309  b, 
435,  459,  934 
Home  Tel.  &  Teleg.  Co.  v.  Los 

Angeles,   227    U.   S.   278,        7  a 
Hood    Rubber    Co.    v.     United 
States    Rubber    Co.,    229 
Fed.  583,  1303 

Hoover  v.  McChesney,  81  Fed. 

472,  105 

V.  Sailing,  110  Fed.  43,  1191 

Hopkins  v.   Clemson  Agri.   Col- 
lege, 221  U.  S.  636,  7  a 
V.  Grimshaw,  165  U.  S.  342,       404 
V.  United  States,  4  App.  Cas. 

(D.  C.)  430,  236 

V.  United  States,  171  U.  S. 

578,  1303 

Hopt  V.  Utah,  110  U.  S.  574, 

138,  140,  192,  196,  251,  266,  326, 
336,  407,  458 
V.  Utah,  120  U.  S.  430, 

395,  396,  425,  442 
Horn  V.  Mitchell,  223  Fed.  549, 

546,  551 
V.  Mitchell,  232  Fed.  819, 

893,  894,  895,  896,  897 
V.  Mitchell,  243  U.  S.  247, 

893,  894,  895,  896 
V.  United  States,  182  Fed.  721,        16 
Horner  v.  United  States,  143  U. 

S.  207,  93,  94 

V.  United  States,  143    U.  S. 

570,  101,  528 

Horwick  v.  Walker-Gordon  Lab- 
oratory Co.,  205  111.  503,  111 
Hosldns  V.  Dickerson,  239  Fed. 

275,  638 

Hoss  V.  United  States,  232  Fed. 

328,  360,  993, 1136,  1168 

Hotema   v.    United    States,    186 

U.  S.  413,  338 

Houghton,  Ex  parte,  7  Fed.  657,       810 
Ex  parte,  8  Fed.  897,         987,  1133 
Houghton  V.  Jones,  1  Wall.  (U. 

S.)  702,  385 

Houston    V.    Moore,    5    Wheat. 

(U.  S.)   1,  6.  188 

V.  United    States,    217    Fed. 

852,         1035,  1047,  1049,  1055 
Hovey  v.  Elliott,  167  U.  S.  409,  16 

Howard  v.  Gosset,  10  Q.  B.  Ad. 

<fe  El.  N.  S.  359.  61 

V.  Manderfield,     31      Minn. 

337,  Gl 


Howard  v.  United  States,  76  Fed. 

896,  470 

V.  United  States,  184  U.    S. 

676.  760 

Howell  V.  State.  37  Tex.  591,  689 

Hoye  V.  Bush,  2  Scott.  N.  R.  86.  61 

Hudgings,  William  F.,  Ex  parte, 

249  U.  S.  378,  508,  513 

Hudson  V.  Parker,  156  U.  S.  277,         90 
r.  State,  44  Tex.  Cr.  251,  47 

Huff  V.  United  States,  228  Fed. 

892,  360,  1033,  1055 

Hughes  D.  P&anz.  138  Fed.  980, 

630,  638,  643 
V.  United  States,  231  Fed.  50, 

1061,  1065 
V.  United  States,    253    Fed. 

543,  309,  1092,  1093 

Hultberg  v.  Anderson,  214  Fed. 

349,  523 

Hume  V.  United  States,  118  Fed. 

689,  217 

Humes  v.  United  States,  170  U. 

S.  210,  1335 

Hunt  V.  United  States,  63  Fed. 

568,  80 

V.  United    States,  166  U.  S. 

424,  84 

Hunter    v.    United    States,    195 

Fed.  253,  87 

V.  Wood,  209  U.  S.  205,  544 

Huntington.  In  re.  68  Fed.  882,         94 
Huntington  v.  United  States,  175 

Fed.  950,  339 

Hurley    v.    State,   46    Ohio    St. 

320,  377 

Huttman,  In  re,  70  Fed.  699,  402 

Hyatt  V.  People,  ex  rel.  Corkran, 

188  U.  S.  691,  632,  650 

Hyde,  Ex  parte,  194  Fed.  207,         1008 
Hyde  v.  Shine,  199  U.  S.  62, 

101, 1008. 1019. 1035. 1037, 
1038.  1049 
r.  United  States,  225  U.    S. 
347, 

37,  380,  462,  1019,  1035, 
1040,  1048,  1049,  1055 
Hyde    &    Schneider    v.    United 

States,  225  U.  S.  347,  1035 

Illinois  Central  R.  R.  Co.  v.  Bos- 
worth,  133  U.  S.  92,  249 
V.  Nelson,  212  Fed.  69.               385 

Illinois  Cudahy  Packing  Co. 
V.  Kansas  City  Soap  Co., 
247  Fed.  556.  309 

Impaneling  Grand  Jury.  In    re. 

26  Fed.  749.  667 

Improvement    Co.    v.    Munson. 

14  Wall.  (U.  S.)  448,  418 


XCII 


TABLE    OF    CASES 


[References  are  to  sections] 


Independent  Publ.  Co.  v.  United 
States,  340  Fed.  849, 

508,  513,  521 
Indianapolis  Water  Co.  v.  Amer- 
ican Strawboard  Co.,  75 
Fed.  972,  512 

Ingraham  v.  United  States,  155 

U.  S.  434,  178,  696 

Ingrid,  The,  195  Fed.  596,         893,  894 
Innes  v.  Tobin,  240  U.  S.  127, 

626,  632,  633,  652 
Interstate    Commerce    Commis- 
sion V.  Baird,   194   U.  S. 
25,  116,  126,  1329 

V.  Brimson,   154  U.  S.    447, 

13,  104  6,  135,  518 
V.  Chicago,  G.  W.  R.  Co., 

209  U.  S.  108,  441 

V.  Reichmann,  145  Fed.  235,     1348 
Ireland  v.  Henkle,  179  Fed.  993, 

37,  93,  94 
Irresistible,  The,  7  Wheat.  (U.  S.) 

551,  190 

Irvine,  Ex  parte,  74  Fed.  954,  122 

Isaacs  V.  United  States,  159  U. 

S.  487,  331,  347 

Isbell  V.  United  States,  227  Fed. 

788,  418,  420 

Isenhouer  v.  United  States,  256 

Fed.  842,  667 

Isojoki,  Ex  parte,  222  Fed.  151,         979 

Itata,  The,  49  Fed.  646,  672 

56  Fed.  505,  672 

Itow  V.  United  States,  223  Fed. 

25,  402 

Jack  V.    Mutual    Reser\'e   Fund 

Life  Ass'n,   113  Fed.   49,       339 
Jackson,   Ex   parte,    14   Blatchf. 

245,  874 

Ex  parte,  96  U.  S.  727, 

104  h,  477,  874 
Jackson,  In  re,  2  Flipp.  183,  635 

Jackson  v.  Knowlton,  173  Mass. 

94,  19 

V.  United   States,    102   Fed. 

473,  327,  395,  467 

Jacob     Hoffman     Brewing     Co. 

V.  McEUigott,     259    Fed. 

525,  7  a,  8  a 

Jacob  Schmidt  Brewing   Co.   v. 

United    States,    254    Fed. 

695,  901 

Jacobs  V.  United  States,  161  Fed. 

694,  404 

Jacobson  v.   Massachusetts,   197 

U.  S.  11,  309 

James,  Re,  18  Fed.  853,        ^  100 

James    v.    Bowman,    190    U.  S. 

127.  680 


Jameson   v.  Gaernett,   10  Bush. 

221,  19 

Januszewski,  Ex  parte,  196  Fed. 

123,  542 

Jefferson    v.    Southern    Express 

Co.,  103  S.  C.  75,  899 

Jelke  V.  United  States,  255  Fed. 
264, 

293,  1011,  1039,  1041,  1047, 
1050,  1052,  1451 
Jem  Yeun,  In  re,  188  Fed.  351,         551 
Jenkins,   Ex  parte,   2  Wall.  Jr. 

521,  54 

Jennings,  In  re,  118  Fed.  479,  498 

Jeung  Bow  v.  United  States,  228 

Fed.  868,  46 

Jewitt  V.  United  States,  100  Fed. 

832,  1137,  1141 

Jim  Hong,  Ex  parte,  211  Fed.  76,  528 
Jochen,  Ex  parte,  257  Fed.  200,  17 
Johannessen    v.    United    States, 

225  U.  S. 227,  193 

John  Bad  Elk  v.  United  States, 

177  U.  S.  529,  25 

John  Gund  Brewing  Co.  v. 
United  States,  204  Fed. 
17,  168,  179,  900 

V.  United  States,  206  Fed. 

386,  1042 

John  Lj-saght,  Ltd.  v.  Lehigh 
Valley  R.  R.  Co.,  254 
Fed.  351,  893,  895 

Johnson   v.   Browne,   205   U.   S. 

309,  585 

r.  Hoy,  227  U.  S.  245,  630 

V.  Southern  Pacific  Co.,  117 

Fed.  462,  11 

V.  Southern  Pacific  Co.,  196 

U.  S.  1,  182,  183,  1343 

V.  State,  44  Ala.  414,  180 

V.  State,  87  Ark.  45,  213 

V.  United  States,  158  Fed.  69,  1032 
V.  United  States,  163  Fed.  30,  128 
V.  United    States,   215   Fed. 

679,  298,  386,  1108,  1116 

V.  United    States,   221    Fed. 

250,  363,  1111 

V.  United  States,  225  U.  S. 
405, 

181,  214,  933,  9.35,  939, 
950,  972,  984,  991,  1002 
V.  United  States,  228  U.  S. 

457,  109,  115 

V.  United   States,   247   Fed. 

92,  140,  276,  277 

V.  "Von  Kettler,  66  III.  63,     .        61 
Johnston  v.  Jones,   1  Black  (U. 

S.),209,  385 

V.    United    States,    87    Fed. 

187,  56,  57,  796 

xciii 


TABLE    OF    CASES 


[References  are  to  sections] 


Jolin  V.  State,  23  Wise.  504,  689 

Jolly  V.  United  States,  170  U.  S. 

402,  454,  707,  808 

Jones  V.  Board,  56  Miss.  766,  249 

V.  Perkins,  245  U.  S.  390.  529 

V.  State,  7  Ga.  App.  825,  451 

V.  State,  12  Ga.  App.  133,  215 

V.  United  States,  27  Fed.  447,  856 
V.  United   States,  137  U.  S. 

202,  32,  302,  303,  309 

V.  United    States,    162  Fed. 

417,     10,   181,  358,  1035,  1049 
V.  United    States,    179  Fed. 
584. 

339,  357,  1049,  1054.  1056 
V.  United  States,  209  Fed.  585,    512 
Joplin  V.  United  States,  235  U. 

S.  699,  171 

Joplin  Mercantile  Co.  v.  United 
States.  213  Fed.  926. 

996,  1032,  1042 
V.  United  States,  236  U.  S. 

531,  182, 1019,  1035,1039 

Jose  Ferreira  dos  Santo,  Case  of, 

2   Brock.   493,  576 

Joseph  R.  Foard  Co.  v.  Mary- 
land, 219  Fed.  827,  893 
Joyce,  Ex  parte,  212  Fed.  282,  537 
J.  S.  Warden,  The,  219  Fed.  517,  380 
Juando  v.  Taylor,  2  Paine.  652,  670 
Jung  Quey  v.  United  States,  222 

Fed.  766,  386,  1035 

Justices  of  New  York  v.  United 

States,  9  Wall,  f  U.  S.)  274,       273 

Kahn  v.  United  States,  214  Fed. 

54,  786 

Kaine,  Ex  parte,  3  Blatchf.  1,    551,  563 
Kaizo  V.  Henry,  211  U.  S.  146,  530 

Kalamazoo  Novelty  Mfg.  Co.  v. 

McAllister,  36  Mich.  327,     450  a 
Kalen  v.  United  States,  196  Fed. 

888,  1107, 1115 

Kane  v.  Kinnare,  69  111.  App.  81,       288 
Kansas  City  Star  v.  Carlisle,  108 

Fed.  344,  1054 

Kanter,  In  re,  117  Fed.  356, 

107,  122,  128,  325 
Kaplan    v.    United    States,    229 

Fed.  389,  1060 

Karcm  v.  United  States,  121  Fed. 

250,  680 

Karstcndick,  Ex  parte,  93  U.  S. 

396.  491.  501.  1058 

Kasle  V.  United  States.  233  Fed. 

878.  422 

Katz    V.    Cf)nnmissioner    of    Im- 
migration,   245    Fed.    316,     537 
Kaufman  v.    United   States,   212 

Fed.  013,       405,  993,  1018,  1185 


Kawailani,  The,  128  Fed.  879,  309 

Kaye  v.  United  States,  177  Fed. 

147,  824,  828,  829,  830,  832 

Kearney,  Ex  parte,  7  Wheat.  (U. 

S.)  38,  523 

Kearns,  In  re,  64  Fed.  481.  1439 

Keck  V.  United  States,  172  U.  S. 
434. 

139. 172, 174, 453, 1039, 1239, 

1240 

Keefe  v.  Hart.  213  Mass.  476.  29 

Keliher  v.  Mitchell,  250  Fed.  904,     501 

V.  United  States,  193  Fed.  8, 

374,  993,  1179 
Kellar  v.  United  States,  213  U. 

S.  138,  1,3,4,6 

Keller  v.  The  State,  12  Maryland, 

322,  190 

V.  United    States,    168  Fed. 

697,  707 

V.  United    States,  213  U.  S. 

138,  1118 

Kellog  V.  United  States,  103  Fed. 

200,  431 

Kelly,  In  re.  71  Fed.  545,  950 

Kelly  V.  Bemis,  70  Mass.  83,  27.  61 

V.  Griffin,  241  U.  S.  6.         584.  607 

V.  United    States,    27    Fed. 

616,  396,  408 

V.  United    States,    250  Fed. 

947,  62,  512,  513,  516 

V.  United   States,    258   Fed. 

392,  851,  993,  1026 

Kemmler,  In  re,  136  U.  S.  436, 

12,  467 
Kennedy  v.  People,  44  111.  283,         391 
V.  State,  107  Ind.  144,  31 

Kennett  v.  Chambers,   14  How. 

(U.  S.)  38,  672 

Kenney    v.    United    States,    254 

Fed.  262,  867 

Kentucky  v.  Wendling,  182  Fed. 

140,  279 

Kepner  v.  United  States,  195  U. 

S.  100,       231,  232.  235,  243,  271 
Keppel  V.  Tiffin  Savings  Bank, 

197  U.  S.  359,  182 

Kercheval  v.  Allen,  220  Fed.  262,     1447 

Kerr  v.  Illinois,  119  U.  S.  436,  33 

V.  Shine,    136  Fed.   01,  35 

Kerrch    v.    United    States,    171 

Fed.  366,  310,  394 

Kettenbach    v.    United    States. 
202  Fed.  377. 

263.    280.    288.    293.    310. 
358.    360,    386,    459,    1177 
Keyes  v.  The  State,  122  Ind.  527,         45 
Kharas    v.    United    States,    192 

Fed.  503,  178,  280 

Kie  V.  United  States,  27  Fed.  351,     935 


XCIV 


TABLE  OF  CASES 


[References  are  to  sections] 


Kilbourn  v.  Thompson,  103  U.  S. 

168,  135 

Kilpatrick  v.  Grand  Trunk  Ry. 

Co.,  74  Vt.  288,  417 

Kimberly  v.  Arms,  129  U.  S.  512.     322 
King,  Ex  parte,  200  Fed.  622, 

1060,  1061 
King  V.  Dunnevan,  1  Leach  Cr. 

Law,  81,  946 

V.  Pomeroy,  121  Fed.  287,  469 

w.  State,  43  Fla.  211,  689 

V.  United  States,  112  Fed. 

988,  385,  402,  461,  778 

Kinney,  In  re,  102  Fed.  468,  1439 

Kinney  v.  Plymouth  Rock  Squab 

Co..  213  Fed.  449,  208 

Kinser  v.  United  States,  231  Fed. 

856,  358,  386 

Kirby  v.  United  States,  174  U.  S. 
47, 

70.  74,  263,  318,  408,  709,  949 
Kirk  V.  United  States,  124  Fed. 

324,  84 

V.  United   States,   192   Fed. 

273,  513 

Kirkwood  v.  United  States,  256 

Fed.  825,  700 

Kitchens   v.    Hamilton,    239    U. 

S.  637,  542 

Knauer    v.    United    States,    237 
Fed.  8, 

1035,  1039,  1042,  1272,  1277, 
1318,  1321,  1328 
Knezek  v.  State,  47  Tex.  Cr.  157,     689 
Knickerbocker    Steamboat    Co., 

In  re,  136  Fed.  956,  120 

Knoell  V.  United  States,  239  Fed. 

16,  300,  374 

Knote  V.  United  States,  95  U.  S. 

149,  245,  246,  249 

Knowles  v.   United  States,    170 

Fed.  409,  872 

Kohl  V.  Lehlback,  160  U.  S.  293, 

530,  549 
Kolb  V.  Union  R.  R.  Co.,  23  R.  I. 

72,  371 

Kollock,  In  re,  165  U.  S.  526, 

2,  12,  1440 
Konda  v.  United  States,  166  Fed. 

91,  313,  434,  872 

Kopel,  In  re,  148  Fed.  505,        563,  577 
Kopel    V.   Bingham,    211    U.    S. 

468,  627 

Korf  V.  Jasper  Coimty,  132  la. 

682,  47 

Kovoloff  V.   United   States,   202 

Fed.  475,  174,  786 

Krakowski  v.  United  States;  161 

Fed.  88,  811 

Krause,  Ex  parte,  228  Fed.  547,       627 


Krause  v.  United  States,  147  Fed. 

442,  178,  180,  219,  280 

Kreuzer   v.    United    States,    254 

Fed.  34,  1435 

Kring  v.  Missouri,  107  U.  S.  221. 

192,  193,  196,  232,  243,  301 

Kroger  Grocery,  etc.,  Co.  v.  Re- 
tail, etc.,  Co..  250  Fed. 
890,  1339 

Kulp  V.  United  States,  210  Fed. 

249,  459 

Kurtz  V.  Moffitt,  115  U.  S.  487, 

19,  21,  535,  703 

La    Bourgogne,  104  Fed.  823,  117 

Lair.  Ex  parte.  177  Fed.  789,  37,  309 
Lake  County  v.  Rollins,  130  U.  S. 

662,  183 

Lake  Shore  &  M.  S.  Ry.  Co.  v. 

Ohio,  173  U.  S.  285,  4 

Lalime,  Ex  parte,  244  Fed.  279, 

46,  537 
La  Mantia,  Ex  parte.  206  Fed. 

330,  75.  593.  611 

Lamar  v.  United  States.  240  U.  S. 

60,  37.  693 

V.  United  States.  241  U.  S. 

103.  693 

Lamb  v.  Lane.  4  Oh.  St.  167,  274 

Lambert  v.   Barrett,    159   U.   S. 

660,  567 

Lamberton,  In  re,  124  Fed.  446.  402 
Lammon  v.  Fensier.  Ill  U.  S.  17.  28 
Lam  Pui.  Ex  Parte.  217  Fed.  456. 

46.  532.  551 
Lancaster  v.   United   States.   44 

Fed.  896,  297 

Lane.  In  re.  135  U.  S.  443,  526,  940 
Lang.  Ex  parte.  18  Wall.  (U.  S.) 

163, 

176,  232.  234.  235,  239,  243, 
474.  528 
Lankster  v.  State.  72  S.  W.  388,  370 
La  Page.  Ex  parte,  216  Fed.  256.  588 
Lapina  v.  Williams,  232  U.  S.  78,  183 
Larton  v.  State,  7  Mo.  55.  467 

Lascelles  v.  Georgia,   148  U.  S. 

537,  626,  644,  652 

Lasere   v.    Rochereau.    17   Wall. 

(U.  S.)  437.  16 

Late  Corporation  of  the  Church 

of  Jesus  Christ  of  Latter- 
Dav     Saints     v.     United 

States,  136  U.  S.  1,  974 

Latham    v.    United    States.    226 

Fed.  420,  152 

Latimer.  In  re,  141  Fed.  665,  1039 

Laurada,  The,  98  Fed.  983,  672 

Lawler,  In  re,  40  Fed.  233,  555 

Lawler  v.  Loewe,  209  Fed.  721,     1052 

xcv 


TABLE    OF   CASES 


[References  are  to  sections] 


Leaken,  In  re,  137  Fed.  680,  544 

Lear  v.  United  States,  147  Fed. 

349,  1147 

Ledbetter  v.  United  States,  108 

Fed.  52,  308 

V.  United  States,  170  U.  S. 

606,  160,  163,  358 

Lee  V.  State,  51  Miss.  566,  290 

V.  United    States,    156    Fed. 

948,  872 

Lee  Dock  v.  United  States,  224 

Fed.  431,  180 

Lee  Leong  v.  United  States,  217 

Fed.  48,  549 

Lee  Mow  Lin  v.  United  States, 

240  Fed.  408,  1086 

V.  United    States,  250   Fed. 

694,  393 

Lees  V.  United  States,  150  U.  S. 

476,  38,  114,  426 

Leger  v.  Warren,  62  Ohio,  500,  29 

Le  Hane  v.  Nebraska,  48  Nebr. 

105,  213 

Lehigh  Valley  R.  Co.  v.  United 

States,  188  Fed.  879,  1350 

Leib  V.  Halligan,  236  Fed.  82, 

810,  811,  812 
Leisy  v.  Hardin,  135  U.  S.  100,  1304 
Lemon  v.  United  States,  164  Fed. 

953,  1039 

Le  More  v.   United  States,  253 

Fed.  887,  428,  445,  1062 

Lennon,  In  re,  166  U.  S.  548,  536 

Lennon  v.  United  States,  164  Fed. 

953,  411 

Lessee   of   Galbreath   v.    Eichel- 

berger,  3  Yeates,  515,  114  a 

Levin,  In  re,  131  Fed.  388,  122 

Lewis,  In  re,  114  Fed.  963,  930 

Lewis  V.  United  States,  146  U.  S. 

370,  251,  252,  266,  283,  446 

V.  United   States,    192    Fed. 

633,  147 

Lew  Moy  v.  United  States,  237 

Fed.  50,  405,  1039 

Lexington    Mills   Co.   v.   United 

States,  202  Fed.  615,  1082 

Leyer  v.  United  States,  183  Fed. 

102,  422 

License  Cases,  5  How.    (U.  S.) 

504,  3,  4 

Lincoln,  In  re,  202  U.  S.  178,    527,  529 
In  re,  228  Fed.  70, 

584,  586,  607,  622 
Ling  Su  Fan  v.  United  States,  218 

U.  S.  302,  826,  837 

Linn  v.  United  States,  234  Fed. 

543,  3.58,  1000,  1063,  1067 

Linningen  v.   Morgan,  241   Fed. 

645,  531,  824,  999,  1002 

xcvi 


Lippman  v.  People,  175  111.  101,    56,  111 

Littell  V.  United  States,  169  Fed. 

620,  693 

Lobosco   V.    United   States,    183 

Fed.  742,  696 

Locke  V.   New  Orleans,  4  Wall. 

(U.  S.)  172,  193 

Locker  v.  American  Tobacco  Co., 

200  Fed.  973,  257 

Lockhart  v.   United  States,  250 

Fed.  610,  872 

Loewe  v.  Lawlor,  208  U.  S.  274, 

1271,   1272,   1284,   1288,   1292, 
1314,  1318 
Logan  V.  United  States,  123  Fed. 

291,  810,  812 

V.  United  States,  144  U.  S. 
263, 

10,   67,  178,  181,   231,  249, 
300,  343,  375,  680,    1054 
Lohman  v.  People,  1  N.  Y.  379,    114  o 
Lonabaugh  v.  United  States,  179 

Fed.  476, 

343,  1008,  10.35,  1049,  1054 
London    v.    United    States,    171 

Fed.  82,  1191 

Loney,  In  re,  134  U.  S.  372,       545,  987 
Long  V.  The  State,  12  Ga.  293,  31 

Lorenz    v.    United     States,    196 

U.  S.  640,  1049 

Lottery  Case,  188  U.  S.  321,     898,  1305 
Lottery-Guessing    Contests,    23 

Ops.  Atty.-Gen.  207,  874 

Louie  V.  United  States,  218  Fed. 

36,  237,  310 

Louie  Ding  i'.  United  States,  247 

Fed.  12,  300 

Louisiana  Lottery  Cases,  20  Fed. 

625,  875,  882 

Louisville  &  Nashville  R.  R.  Co. 

V.    Kentucky,    161    U.    S. 

677,  309 

Louisville  &  N.  A.  &  Ch.  Ry.  Co. 

V.  Farley,    104    Ind.    409,       398 
Louisville  &  N.  R.  Co.  v.  Wo- 

mack,  173  Fed.  752,  418 

Lovato  V.  New  Mexico,  242  U.  S. 

199,  231 

Lovejoy   v.    United    States,    128 

U.  S.  171,  277,  293,  437 

Low  V.  United  States,  169  Fed. 

86,  266,  267,  274 

Lowden    v.    United    States,    149 

Fed.  673, 

425,  426,  428,  430,  431,  445 
Lowe  V.  Farbwcrko-Hoechst  Co., 

240  Fed.  671,  1092,  1097 

Low  Wah  Sucv  v.  Backus,  225 

U.  S.  460,  537.  549 

Lucy  H.,  The,  235  Fed.  610,     670,  672 


TABLE    OF    CASES 


[References  are  to  sections] 


Ludwig,  In  re,  32  Fed.  774,  596 

Ludwig  V.  Western  Union  Teleg. 

Co.,  216  U.  S.  146,  7  a 

Lueders    v.    United    States,    210 

Fed.  419,  357,  358,  370,  459 

Lung  V.  United  States,  218  Fed. 

817,  300,  374 

Luria  v.  United  States,  231  U.S.  9,       324 
Lutcher  v.  United  States,  72  Fed. 

968,  381 

Luther  v.  Borden,  7  How.  (U.  S.) 

66,  104  b 

Lyman,  Ex  parte,  202  Fed.  303, 

799,  1039,  1058 
Lyman  v.  United  States,  241  Fed. 

945,  1060,  1065,  1067 

Lynon  v.  People,  188  111.  625,  293 

McBride  &   United  States,    101 

Fed.  821,  708 

McBroom  v.  Scottish  Mortgage 

&  Land  Investjment  Co., 

153  U.  S.  318,  187 

McCabe,  Ex  parte,  46  Fed.  363, 

576,  581,  598 
McCarty  v.  United  States,   101 

Fed.  113,  829,  830 

McClaughry  v.  Cratzenberg,  39 

111.  118,  61 

McClendon  v.  United  States,  229 

Fed.  523,  380,  1063 

McClusky,  Ex  parte,  40  Fed.  71, 

16,  138,  266,  501 
McConkey  v.  United  States,  171 

Fed.  829,  1041,  1042 

McCray   v.    United   States,    195 

U.  S.  27,  1069,  1442 

McCuUoch      V.      Maryland,      4 

Wheat.  (U.  S.)  316,  1,  2,  6 

McCullough    V.    Greenfield,    133 

Mich.  463,  25 

MacDaniel  v.  United  States,  87 

Fed.  324,  874,  877 

McDermott    v.    Wisconsin,    228 

U.  S.  115,  1073,  1074,  108O 

McDonald  v.  Pless,  238  U.  S.  264,       450 
V.  United  States,    241    Fed. 

793,  1060,  1061,  1065 

Macdonnell,  In  re,  11  Blatch.  79,       596 
McDowell  V.  United  States,  257 

Fed.  298,  418 

McDuff     V.     Detroit     Evening 

Journal     Co.,     84     Mich. 

1,  288,  293 

McDuffie  V.  United  States,  227 

Fed.  961,  1065 

McElroy  v.   United   States,    164 

U.  S.  76,  176,  178,  179,  180 

McElvaine  v.  Bruch,   143  U.  S. 

155,  467 


MacFadden  v.  United  States,  165 

Fed.  51,  872 

McFarland    v.    American    Sugar 

Ref.  Co.,  241  U.  S.  79,  16 
McGhee  v.  State,  58  Ala.  360,  180 
McGinniss  v.  United  States,  256 

Fed.  621,  690,  1035 

McGoon  1'.  Little,  7  111.  42,  213 

McGregor  v.  United  States,  134 

Fed.  187,  218,  771,  774,  1037 
Mclnerney  v.  United  States,  143 

Fed.  729,  345,  346,  789 

V.  United    States,   147    Fed. 

183,  148 

Mcintosh  V.  Mcintosh,  79  Mich. 

198,  288 

McKane  v.  Durston,   153  U.  S. 

684,  567 

McKean,  Ex  parte,  3  Hughes,  23, 

626,  642 
Mackel  v.   Rochester,    102   Fed. 

314,  123 

McKelvey  v.  United  States,  241 
Fed.  801, 

1026,  1035,  1062,  1065 
McKenna  v.  United  States,  127 

Fed.  88,  680 

Mackenzie  v.  United  States,  209 

Fed.  289,  1066 

McKenzie,  In  re,  180  U.  S.  536,       536 
McKenzie    v.    Hare,   239   U.    S. 

299,  680 

Mackey  v.  Muller,  126  Fed.  161, 

528,  726 
McEabben  v.  Philadelphia  R.  R. 

Co.,  251  Fed.  577,  298 

Mackin    v.    United    States,    117 

U.  S.  348,  137 

McKinney  v.  United  States,  199 

Fed.  25,  133,  154 

McKnight  v.   United  States,  97 

Fed.  208,  263,  428 

V.  United   States,    111    Fed. 

735,  433,  1147,  1174 

V.  United  States,    113    Fed. 

451,  90 

V.  United  States,    115    Fed. 
972, 

15,  115,  295,  323,  426,  443 
V.  United    States,    122    Fed. 

926,  385,  410,  412,  426 

V.  United  States,    252    Fed. 
687, 

216, 899, 993,  1026,  1055 
McLean  Medicine  Co.  v.  United 
States,  253  Fed.  694, 

162,  1065 
McLennon    v.     Richardson,     15 

Gray  (Mass.),  74,  104  6 

McLeod,  Ex  parte,  120  Fed.  130,       796 


XCVll 


TABLE    OF   CASES 


[References  are  to  sections] 


McMicking  v.  Schields,  238  U.  S. 

99,  528 

McMorris    v.    Howell,    89    App. 

Div.  (N.  Y.)  272,  25 

McNamara  v.  Henkel,  226  U.  S. 

520,  324 

McNaught,  In  re,  225  Fed.  511,     1186 
McNichols  V.  Pease,   207  U.   S. 

109,  54,  635,  650 

McRoberts  v.  Lyon,  79  Mich.  33,  84 

MeShann  v.  United  States,  231 

Fed.  923,  856 

Magon  V.  United  States,  248  Fed. 

201,  872 

Mahankei).  Clcland,76Iowa,401,     115  a 
Mahon  v.  Justice,  127  U.  S.  700, 

33,  626,  634 
Malcolm  v.   United   States,   256 

Fed.  363,  162 

Mallett  V.   North  Carolina,   181 

U.  S.  589,  192,  193,  196 

Malloy  V.   South   Carolina,    237 

U.  S.  180,  192,  198 

Maloney  v.  Dows,  2  Hilt.  247,         115  a 
Mamax    v.    United    States,    264 

Fed.  816,  1192 

Mannel    v.    United    States,    254 

Fed.  272,  991 

Manning  v.  John  Hancock  Mu- 
tual   Life    Ins.    Co.,     100 

U.  S.  693,  317 

Mannington   v.    Hocking   Valley 

R.  Co.,  183  Fed.  133, 

1268,  1269 
Manuel  v.  United  States,  254  Fed. 

272,  468 

Marbles  v.  Creecy,  215  U.  S.  63, 

635,  647,  650,  655 
Marbury  v.  Madison,   1  Cranch 

(U.  S.)  137,  304 

Marcil,  Ex  parte,  207  Fed.  809,       483 
Marhoeffer  v.  United  States,  241 

Fed.  48,  1442,  1451 

Marion  County,   Commissioners 

of,  V.  Clark,  94  U.  S.  278,         418 
Markham  v.  United  States,  100 

U.  S.  319,  786 

Markuson  v.  Boucher,  175  U.  S. 

184,  528,  545 

Mark  Yick  Hee  v.  United  States, 

223  Fed.  732,  374 

Marrash   v.   United   States,    168 

Fed.  225,  303,  1030,  1052 

Marrin  v.  United  States,  167  Fed. 

951,  297,  450,  1056 

Marshall  v.   Gordon,  243   U.   S. 

543.  511 

V.  Hubbard.   117    U.  S.  415,       418 
V.  United   States.    197    Fed. 

511,  357,359,371,1065 


Martin  v.  Houck,  141  N.  C.  317,         31 
V.  State,  97  Ark.  212,  31 

V.  Texas,  200  U.  S.  316,  286 

V.  United  States,    168   Fed. 

198,  160,  790 

V.  United  States,    264    Fed. 

950,  1426 

Marvin    v.    United    States,    167 

Fed.  951,  415 

Maryland  v.  B.  &  O.  R.  R.  Co., 

3  How.  (U.  S.)  534,  190 

Marzen  v.  People,  173  111.  43,  391 

Mason  v.  United  States,  244  U.  S. 

362,  118,  122 

Matheson  v.  United  States,  227 

U.  S.  540,  338 

Matthews,  In  re,   122  Fed.  248,  21 

Matthews  v.  Densmore,  43  Mich. 

461,  61 

V.  Densmore,  109  U.  S.  216,         61 
V.  United  States,  161    U.  S. 

500,  163 

Mattox    V.    United    States,    146 
U.  S.  140, 

265,  408,  450, 458,  459,  462, 
463 
V.  United  States,  156  U.  S. 

237.  70,  73,  408,  417 

Maupin    v.    United    States,    258 

Fed.  607,  442 

Maury,  In  re,  205  Fed.  626,  507 

Maxey  v.  United  States.  207  Fed. 

327,  300,  397 

May  V.  United  States,  199  Fed. 

60,  260.  262,  276,  1451 

V.  United    States,    236    Fed. 

495,  322 

Mays  V.  United  States,  179  Fed. 

610,  1008,  1047 
Medley,  In  re,  134  U.  S.  160,  192,  193 
Meehan  v.  Valentine,  145  U.  S. 

611,  418 
Melanson  v.  United  States,  256 

Fed.  783,  309,  1092,  1099 

Melton  V.  United  States,  120  Fed. 

504,  313,  441 

Memphis  &  Newport  Packet  Co. 

V.  Hill,  122  Fed.  246,  952 

Menefee   v.    United   States,    236 

Fed.  826,  397.  1060,  1066 

Merchants'  Bank  v.  State  Bank, 

10  Wall.  (U.  S.)  637,  418 

Merchants'  Stock  &  Grain   Co., 

In  re,  223  U.  S.  639,  523 

Merchants'  Stock  &  Grain  Co.  v. 

Rd.    of   Trade,    201    Fed. 

20.  76.  238,  516,  518,  519,  520 
Merrick  v.  Halsey,  242  U.  S.  568,  4 

Mcrritt,     Ex    parte,    245    Fed. 

778,  628 


XCVlll 


TABLE   OF    CASES 


[References  are  to  sections] 


Metcalf  V.  State,  L.  R.  A.  1916 

E,  595.  87 

Metzger,  In  re,  5  How.  176,  607 

Meyer  v.  United  States,  220  Fed. 

822,  385,  1032,  1049 

Mickle  V.  United  States,  157  Fed. 

229,  373 

Miles  V.  United  States,  103  U.  S. 

304,  316,  363,  442,  974 

Miller  v.  United  States,  133  Fed. 

337,  16,  139,  174,  1054 

V.  United  States,  174  Fed.  35,     1060 
V.  United    States,  242    Fed. 

907,  35,  933,  948 

V.  United   States,  245  U.  S. 

660,  35 

Milligan,  Ex  parte,  4  Wall. 
(U.  S.)  2, 

15,  17,  104  b,  267,  270 
Mills,  Ex  parte,  135  U.  S.  263, 

137,  140,  531 
Mima     Queen    v.     Hepburn,     7 

Cranch  (U.  S.),  290,  286 

Miner  v.  United  States,  244  Fed. 

422,  241,  242 

Mingo  V.  Levy,  165  N.  Y.  Suppl. 

276,  31 

Minneapolis  &  St.  Louis  Ry.  Co. 
V.  Beckwith,  129  U.  S. 
26,  17  c 

V.  Bombolis,  241  U.  S.  211, 

273,  274,  447 
Missouri   Drug  Co.   v.   Wyman, 

129  Fed.  623,  884 

Missouri,  Kansas  &  T.  Rv.  Co.  v. 

Wulf,  226  U.  S.  570,  303 

Missouri  Pac.  Rv.  Co.  v.  Humes, 

115  U.  S.  512,  268 

V.  Mackey,  127  U.  S.  205,  17  c 

V.  Oleson,  213  Fed.  329,  418 

Mitchell,  In  re,  171  Fed.  289,  596 

Mitchell  V.   Cole,  226  Fed.   824,     1436 

V.  Hitchman   Coal    &    Coke 

Co.,  214  Fed.  685,  1029 

V.  United    States,    196   Fed. 

874,  201,  491,  1064 

V.  United  States,    229  Fed. 

357,  358,  1025,  1026 

Moffatt  V.  United  States,  232 
Fed.  522, 

215,  310,  360,  1060,  1065 
Monongahela  Navigation  Co.  v. 
United  States,   148  U.  S. 
312,  17  c 

Montague  &  Co.  v.  Lowry,  193 

U.  S.  38,  1294,  1303 

Montana  v.  Bradshaw,  53  Mont. 

96,  19 

Montclair    Twp.    v.    Daaa,    107 

U.  S.  162,  418 


Montgomery,  Ex  parte,  244  Fed. 
967, 

37,    534,   626,   628,   632,   648, 
650 
Montgomery    v.    United    States, 

162  U.  S.  410,  855,  856 

V.  United    States,   219    Fed. 

162,  412 

Montgomery  L.  &  W.  P.  Co.  v. 
Montgomery  Traction 
Co.,  219  Fed.  963,  523 

Moodie  v.  The  Betty  Cathcart, 
Bee,  292,  3  Dall.  (U.  S.) 
288,  673 

V.  The  Brothers,  Bee,  76,  673 

V.  The  Phojbe  Anne,  3  Dall. 

(U.  S.)  319,  673 

Moore  v.  Illinois,  14  How.  (U.  S.) 

12,  229,  230 

V.  People,  108  111.  484,  370 

V.  State,  107  Miss.  181,  689 

V.  United    States,    85    Fed. 

465,  190 

V.  United    States,    144  Fed. 

962,  741 

V.  United  States,  150   U.  S. 

57,  310,  339,  357,  358,  359 

V.  United    States,   159  Fed. 

701,  561 

V.  United  States,  160  U.  S. 
268, 

174,  263,  697,  708,  886,  1157 
Moran,  Matt«r  of,  203  U.  S.  96,  530 
Moran  v.  United  States,  264  Fed. 

768,  1426 

Morgan,  Ex  parte,  20  Fed.  298, 

626,  627,  638,  642,  643,  645,  653 
Morgan  v.  Devine,  237  U.  S.  632, 

235,  468,  707,  850,  851,  853 
V.  Sylvester,  231    Fed.  886, 

468,  528,  707,  708,  851,  802 
V.  United   States,    148    Fed. 

189,  217,  218,  464 

Morgan's  Louisiana,  etc.  Steam- 
ship Co.  V.  Board  of 
Health,  118  U.  S.  455,  5 

Morrill  v.  Jones,  106  U.  S.  423,  157 

Morris  v.  Scott,  21  Wend.  (N.  Y.) 

281,  61 

V.  United  States,   149    Fed. 

123,  380,  429 

V.  United    States,    161   Fed. 

672,        172,  174,  257,  279,  465 
V.  United    States,   168  Fed. 

682,  464,  1440 

V.  United   States,    229   Fed. 

516,  188,  812 

V.  United  States  (Decided 
Mar.  4,  1919)  — 
(C.  C.   A.  7th  Cir.),  787 

xcix 


TABLE    OF   CASES 


[References  are  to  sections] 


Morrissey,  In  re,  137  U.  S.  157,       538 
Morse,  In  re,  1 17  Fed.  763,  470 

Morse  v.  United  States,  174  Fed. 

539,  1173, 1177 

V.  United   States,   255   Fed. 

681,  393 

Moses  V.  Julian.  45  N.  H.  52,  213 

V.  United   States,    221   Fed. 

863,  1061 

Moss  V.  United  States,  23  App. 

(D.  C.)  475,  234 

Motes  V.  United  States,  178  U.  S. 

458,  73,  178,  680 

Motion  Picture  Patents  Co.  v. 
Universal  Film  Mfg.  Co., 
235  Fed.  398,  1339 

Mounday  v.   United  States,  225 

Fed.  695,  1060,  1063 

Moxley  v.  Hertz,   185  Fed.  757, 

1442,  1454 

V.  Hertz,  216  U.  S.  344,  1442 

Mueller  v.  Nugent,  184  U.  S.  1,  514 

Mugler  V.  Kansas,  123  U.  S.  623,  5 

Muir  V.  Louisville  &  N.  R.  Co., 

247  Fed.  888,  244 

Mullen  V.  United  States,  106  Fed. 

892,  288,  319,  428,  438,  445 

Munn  V.  Illinois,  94  U.  S.  113,         6,  18 
Munroe,  In  re,  210  Fed.  326,  513 

Munsey  v.  Clough,  196  U.  S.  364, 

530,  632,  635,  637,  647,  650 
Munson?).  McClaughry,  198  Fed. 

72,  239,  468,  531,  707,  851 

Murdock   v.    Pollock,    229    Fed. 

392,  551 

Murphy   v.    Massachusetts,    177 

U.  S.  155,  240,  474 

V.  Ramsey,  114  U.  S.  15,  201 

Murray,  Ex  parte.  35  Fed.  496,       726 
Murray  v.  Hoboken  Land  &  Im- 
provement Co.,  18  How. 
(U.  S.)  272,  15 

V.  United  States,   247    Fed. 

874,  364,  397,  878 

Mutual  Life  Ins.  Co.  v.  Hillmon, 

145  U.  S.  285,  280 

Mutual    Transit    Co.    v.    United 

States,  178  Fed.  664,  1348 

Myers  v.  Halligan,  244  Fed.  420,       528 
V.  People,  67  111.  503,  56 

V.  United    States,   223    Fed. 

919,  1061,  1065 

Myres  v.  United  States,  256  Fed. 

779,  934 

Myrick  v.  United  States,  219  Fed. 

1,  884 

Nabb  V.  United  States,  1  Court 

Claims,  173,  47 

Nachman,  In  re,  114  Fed.  995,         116 


Naftzger  v.  United  States,  200 
Fed.  494, 

16,  139,  174,  309,  331,  709 
Nagle  V.  United  States,  145  Fed. 

302,  306 

Nash  V.  United  States,  229  U.  S. 
373, 

434,  1035, 1267,  1272,  1274, 
1277, 1281,  1309,  1314,  1318. 
1335 
Natal  V.  State  of  Louisiana,  123 

U.  S.  516,  513 

National  Bank  v.  Schufelt,   145 

Fed.  509,  279 

National   Banking  Associations, 

17  Ops.  Atty.-Gen.  471,         1130 
National  Cotton  Oil  Co.  v.  Texas, 

197  U.  S.  115,  1271,  1307 

Naturalization  of  Aliens  in  Serv- 
ice of  Army  or  Navj'  of 
United  States,  250  Fed. 
316,  1254 

Neagle,  In  re,  39  Fed.  833,  934 

In  re,    135  U.   S.   1,  543.  545 

Neal  V.  Delaware.  103  U.  S.  370,  279 
Neall  V.  United  States,  118  Fed. 

699,  397,  808,  809 

Neeley,  In  re,  103  Fed.  626,  576 

Neeley  v.  Hankel,  180  U.  S.  109, 

579,  581 
Neff  V.  United  States,  165  Fed. 

273,  689 

Nelson  v.  United  States,  52  Fed. 

646,  171 

V.  United  States,  201  U.  S. 

92,  113  a,  121,  134,  1329 

Nemcof   v.    United    States,    202 

Fed.  911,  1032 

Nevitt,  In  re,  117  Fed.  448,  247,  512 
Newall  V.  Jenkins,  26  Pa.  159,  1030 
Newhall  v.  Egan,  28  R.  I.  584.  29 

V.  Sanger,  92  U.  S.  761,  710 

Newman,  In  re,  79  Fed.  662,  582 

New  Orleans  v.  New  York  Mail 
Steamship  Co..  20  Wall. 
(U.  S.)  387.  523 

V.  Paine.  147  U.  S.  261.  7  a 

New  Orleans  Gas  Co.  v.  Lou- 
isiana Light  Co..  115  U.  S. 
650,  5 

Newton  v.  Locklin,  77  111.  103,  19 

New  York  v.  Eno,  155  U.  S.  89,         987 
New  York  Central  &  H.  R.  R. 
Co.     V.     United     States. 
166  Fed.  267,  37 

V.  United  States,  212  U.  S. 
481, 

170, 1346, 1350, 1352, 1355 
New  York  Mutual  Life  Ins.  Co. 

V.  Hill,  97  Fed.  263,  304 


TABLE    OF   CASES 


[References  are  to  sections] 


NG.    Choy    Fong    v.    United 

States,  245  Fed.  305,  316 

Nichols  V.  State,  C5  Ind.  512,  450  a 

Nickel!    V.    United    States,    161 

Fed.  702,  787,  1191 

Nielsen,  Ex  parte,  131  U.  S.  176, 

227,  228,  235,  467,  468,  528, 
530,  531,  542,  974 
Niles-Bement-Pond  Co.  v.   Iron 

Molders'  Union,  Local  No. 

68,  24G  Fed.  851,  1339 

Nishimura      Elkin      v.      United 

States,  142  U.  S.  651,  537 

Noah  V.  United  States,  128  Fed. 

270,  786 

Nohrden  v.  Northeastern  R.  R. 

Co.,  59  S.  Car.  87,  417 

Nordan  v.  State,  143  Ala.  13,  441 

Norddeutschen  Lloyd  v.  United 

States,  213  Fed.  10,  322 

Northern  Pac.  R.  R.  Co.  v.  Her- 
bert, 116  U.  S.  642,  283 
Northern    Securities    v.    United 

States,    193    U.    S.    197, 

11,  158,  1267,  1272,  1275, 
1281,  1307,  1314 
Norton  v.  Shelby  County,  118  U. 

S.  425,  191 

V.  United  States,  205  Fed.  593,      372 
Nurnberger  v.  United  States,  156 

Fed.  721,         298,  306,  376,  787 

Oakes,  The  T.  F.,  82  Fed.  759,         952 
Oakes  v.  United  States,  174  U. 

S.  778,  309  b 

Oakley  v.  Aspinwall,  3  N.  Y.  547,       213 
Oates  V.  National  Bank,  100  U. 

S.  239,  187 

V.  United    States,   233    Fed. 

201,  512,  520 

O'Brien  v.  McClaughry,  209  Fed. 

816,  239,  481,  531,  851,  999 

Ocampo   V.    United    States,    234 

U.S.  91,  66 

Ocean  S.  S.  Co.  v.  Williams,  69 

Ga.  251,  29 

Odell  V.  Schroeder,  58  111.  353,  18 

Oesting   v.    United    States,    234 

Fed.  304,  1060 

Oetjen  v.   Central   Leather  Co., 

246  U.  S.  297,  303 

Ogden   V.   Saunders,    12   Wheat. 

(U.  S.)  213,  193 

V.  United    States,   112    Fed. 

523,  298,  417,  459,  463 

O'Hare,  Ex  parte,  179  Fed.  662,         960 
Oig  Seen  v.   Burnett,   232   Fed. 

850,  563 

O'Learv  v.  United  Stated,  158 

Fed.  796,  738 


Oliver  v.  Hyland,  186  Fed.  843,         672 
V.   United  States,  230  Fed. 

971,  937,  939 

Olson  V.  United  States,  133  Fed. 

849,  179,  358,  359, 1191 

O'Neal  V.  United  States,  190  U. 

S.  36,  238,  523 

O'Neil  V.  People,   113  111.  App. 

195,  238 

O'Neill  V.   Vermont,    144   U.   S. 

323,  467 

Ontai  V.  United  States,  1S8  Fed. 

310,  696 

Oppenheim  v.  United  States,  241 
Fed.  625, 

219,  288,  438,  439,   1032 
Orear,  et  al.  v.  United  States,  261 

Fed.  257,  667 

Ornelas  v.  Ruiz,  161  U.  S.  502, 

101,  533,  551,  558 
Orozco,  Ex  parte,  201  Fed.  106, 

15,  675 
Orr  V.  Oilman,  183  U.  S.  278,  12,  193 
Orth  V.  United  States,  252  Fed. 

566,  802 

Orvig  Dampskibselskap  Actie- 
selskabet  v.  New  York 
&  Bermudez  Co.,  229 
Fed.  293,  120 

Osborn     v.     United     States,     9 

Wheat.  (U.  S.)  738,  210 

V.   United  States,  91   U.  S. 

474,  247,  248,  249 

Osborne,  In  re,  115  Fed.  1,  308 

O'Shea,  In  re,  166  Fed.  180,      117,  120 
O'Shea  v.  People,  218  111.  352.  391 

Oteiza,  Luis,  In  re,  136  U.  S.  330, 

607,  622 
Ousler  V.  United  States,  263  Fed. 

968,  1426 

Outlaw  V.   Hurdle,   1   Jones   (N. 

C.)  150,  450  a 

V.  State,  1  Jones  L.  (N.  C.) 

150,  450  a 

Owens  V.  McCloskey,  161  U.  S. 

642,  84 

V.  United    States,    130  Fed. 

279,  442 

Owl  Creek  Coal  Co.  v.  Goleb,  232 

Fed.  445,  385 

Pablo  V.  United  States,  242  Fed. 

905,  361,  369 

Pacific     Coal     Co.     v.     Pioneer 

Mining     Co.,     205     Fed. 

577,  209 

Pacific  Mail  S.  S.  Co.  v.  Joliffe,  2 

Wall.    (U.    S.)    450,  190 

Pacific  Railway  Comm.,  Re,  32 

Fed.  241,  135 

ci 


TABLE   OF  CASES 


[References  are  to  sections] 


Packer    v.    United    States,    106 

Fed.  906,  358 

Pakas  V.  United  States,  240  Fed. 

350,  361,  855 

Palliser,  In  re,  136  U.  S.  257,     37,  700 
Palmer  v.  Maine  C.  Ry.  Co.,  92 

Maine,  399,  25,  31 

V.  Southern  Express  Co.,  129 

Tenn.  116,  899 

Papernow  v.  Standard   Oil    Co., 

228  Fed.  399,  279 

Pappas  V.  United  States,  241  Fed. 

665,  363,  369,  1111 

Parish  v.  United  States,  247  Fed. 

40,  872 

Parker  v.  People,  97  111.  32,  468 

V.  Territory,  5  Arizona,  283,  290 

V.  United    States,    203    Fed. 

950,  359 

Parkhurst  v.  Lowten,  1  Merivale, 

391,  115  a 

Parkinson  v.  United  States,   121 

U.  S.  281,  137 

Parks,  Ex  parte,  93  U.  S.  18, 

229.  234,  628 
Parks  V.  Ross,  11  How.  373,  418 

Parsons  v.   Bedford,  3  Pet.   (U. 

S.)  433,  270 

Patterson  v.  Colorado,  205  U.  S. 

454,  513 

V.  Corn  Exchange  of  Buffalo, 

et  al.,  197  Fed.  686,  1328 
V.  Kentucky,  97  U.  S.  501,  3,  4 
V.  Prior,  18  Ind.  440,  27 

V.  United    States,  2    Wheat. 

(U.  S.)  221,  464 

V.   United  States,   222   Fed. 
599, 

342,   434,   440,    1030,    1065, 
1272,      1278,      1281,      1292, 
1293,  1294,  1300,  1321 
V.  United    States,    240  Fed. 

833,  374 

Patton  V.   Texas  &  Pacific  Ry. 

Co.,  179  U.  S.  660,  418 

Paul  V.  Virginia,  8  Wall.  (U.  S.) 

168,  120 

Paulsen  v.  United  States,  199  Fed. 

423,  1107 

Payne  v.  Niles,  20  How.  (U.  S.) 

219,  523 

Peane  v.  Atwood,  13  Mass.  324,         27 
Peara  v.  United  States,  221  Fed. 

213,  451 

Pearce  v.  Atwood,  13  Mass.  324,         61 
V.  Texas,  155  U.  S.  311,        637,  640 
Pearsall  v.  Gt.  Northern  R.  Co., 

161  U.  S.  646,  1271 

Peckham  v.   Henkcl,   216  U.  S. 

483,  530 

cii 


Peeke,  Ex  parte,  144  Fed.  1016, 

479,  1058 
Peisch  V.  Ware,  4  Cranch  (U.  S.), 

347,  1242 

Pembina  Mining  Co.  v.  Pennsyl- 
vania, 125  U.  S.  181,      "         17  c 
Pennoyer  v.  Neff,  95  U.  S.  714,  16 

Peonage  Cases,  123  Fed.  671, 

680,  929,  930 
136  Fed.  707,  930 

Peonage  Charge,  In  re,  138  Fed. 

686,  930 

People  V.  Argo,  237  111.  173,  118 

V.  Bemis,  51  Mich.  422,  297,  423 
V.  Berry,  107  Mich.  256,  56 

V.  Bevans,  52  Cal.  470,  419 

V.  Brown,  72  Calif.  390,  286 

?).  Cady,  6HiIl(N.  Y.),490,  689 
V.  Casey,  96  N.  Y.  122,  283 

V.  Collins,  9  Cal.  App.  622,  689 
V.  Davenport,  13  Calif.  632, 

297,  423 
V.  Davis,  21  Wend.  (N.  Y.) 

309,  319  a 

V.  De  Carnio,  179  N.  Y.  130,  356 
V.  Drayton,  168  N.  Y.  10,  689 
V.  Eastman,  188  N.  Y.  478,  872 
V.  Faber,  199  N.  Y.  256,  449,  450 
V.  Fanning,  131  N.  Y.  659,  439 

V.  Fielding,  158  N.  Y,  542, 

297  423 
V.  Fitch,  1  Wend.  (N.  Y.)  198,' 

689 
V.  Galloway,  17  Wend.  540,  689 
V.  Greenwall,  108  N.  Y.  196,  356 
V.  Haley,  48  Mich.  495,  19 

V.  Hamilton,  183  App.  Div. 

(N.  Y.)  55,  21 

V.  Harris,  136  N.  Y.  423,  359 

V.  Harrison,  8  Barb.  560,  689 

V.  Heed,  1  Idaho,  531,  689 

V.  Hoffron,  53  Mich.  527,  56 

V.  Jacobs,  243  111.  580,  391 

V.  Lehr,  196  111.  361,  392 

V.  Leonzo,  181  Mich.  41,  288 

V.  Marendi,  213  N.  Y.  610,  18,  51 
V.  Mather,  4  Wend.  229, 

114  a,  115  a,  1057 
V.  McQuade,  110  N.  Y.  300, 

283,  286 
V.  Minsky,  227  N.  Y.  94,  445 

V.  Molincaux,  168  N.  Y.  264,  356 
V.  Murray,  14  Cal.  159,  453 

V.  Olcott,  2  Johns.  Cas.  (N. 

Y.)  310,  1057 

V.  Parton,  49  Cal.  632,  325 

V.  Richards,  67  Cal.  412,  1057 

V.  Ruhright,  241  111.  GOO,  84 

V.  Rucf,  14  Calif.  App.  576,  288 
V.  Shall,  9  Cow.  (N.  Y.)  778,       689 


TABLE    OF    CASES 


[References  are  to  sections] 


People  V.  Sheldon,  156  N.  Y.  268,       449 
V.  Shufelt,  61  Mich.  237,  286 

V.  Suffolk,    Common    Pleas, 

18  Wend.  (N.  Y.)  550,  213 
V.  Tomlinson,  35  Cal.  503,  689 
V.  Van  Blarcum,  2  Johns.  (N. 

Y.)  105,  946 

V.  Vanderhoof,  71  Mich.  158,  392 
V.  Van  Home,  8  Barb.  158,  176 
V.  Weil,  243  111.  208,  454 

V.  Welch,  141  N.  Y.  266,  943 

V.  Wells,  100  Cal.  227,  283 

V.  Woods,  172  N.  W.  (Mich.) 

383,  319  a 

V.  Zeiger,  6  Park   (N.    Y.), 

355,  450 

Perara  v.  United  States,  221  Fed. 

213,  293,  323,  856 

Pereles  v.  Weil,  157  Fed.  419, 

93,  100,  1037,  1041 
Perkins,  In  re,  100  Fed.  950,     68,  508 
Perkins    v.    United    States,    228 
Fed.  408, 

337,  341,  439,  934,  935 
Perlman   v.   United    States,    247 

U.  S.  7,  107 

Perlman  Rim  Corp.  v.  Firestone 
Tire  &  Rubber  Co.,  244 
Fed.  304,  107 

Perovich  v.   United  States,   205 

U.  S.  86,  325,  327,  347, 437 

Perrin  v.  United  States,  169  Fed. 

17,  310,  1047 

Pervear     v.     Massachusetts,     5 

Wall.  CU.  S.)  475,.  467 

Peters  v.  United  States,  94  Fed. 

127,  160,  226,  376,  1151 

Peterson  v.   United   States,   213 

Fed.  920,  449,  948,  949 

V.   United  States,  246  Fed. 

118,  851 

Petri  V.  Creelman  Lumber  Co., 

199  U.  S.  487,  469 

Pettibone  v.  Nichols,  203  U.  S. 

192,  648 

V.  United  States,  148  U.  S. 
197, 

158,   160,    171,    173,    174. 
513,  580,  796,  801,   1016, 
1029,   1039,    1041,   1047 
Pettine  v.  New  Mexico,  201  Fed. 

489,  318,  442 

Pettit  V.  Walshe,  194  U.  S.  205, 

589,  594,  596,  608 
Phelps    V.    McAdoo,    94    N.    Y. 

Supp.  265,  105 

Philadelphia  Co.  v.  Stimson,  223 

U.  S.  607,  7  a 

Philadelphia  &  R.  R.  R.-  Co.  v. 

Maryland,    239    Fed.    1,         436 


Philadelphia  &  Trenton  R.  R. 
Co.  V.  Stimpson,  39  U. 
S.  (14  Pet.)  448,  385 

Phillips,  In  re,  10  Int.  Rev.  Rec. 

107,  117 

Phillips  V.  lola  Portland  Cement 

Co.,  125  Fed.  593,  1276 

V.  Trull,  llJohnston  (N.  Y.), 

486,  31 

V.   United  States,   201   Fed. 

259,  63,  221,  411,  1181 

Phillips  Sheet  &  Tin  Plate  Co. 

V.     Amalgamated     A.     of 

I.   S.   &   T.  W.,  208  Fed. 

335,  517 

Phipps  V.  United  States,  251  Fed. 

879,  667 

Pictorial    Review   Co.    v.    Curtis 

Pub.  Co.,  255  Fed.  205,  1339 

Pierce  v.  Creecy,  210  U.  S.  387, 

530,  534,  637,  642,  643, 
649,  656 
V.  United  States,  160  U.  S. 

355,  327,  934 

Pilcher  ?).  United  States,  113  Fed. 

248,  395 

Pilson  V.  United  States,  249  Fed. 

328,  872 

Pinkard  v.  State,  30  Ga.  757,  353 

Piper  V.  Pearson,  2  Gray,  120,  61 

Piatt  V.  Beach,  2  Ben.  303,  784 

Pleasants  v.  Faut,  22  Wall.  (U. 

S.)  120,  418 

Podolin  V.  Lesher  Warner  Dry 
Goods  Co.,  210  Fed.  97, 

117,  128,  329 
Poetter   v.    United    States,     155 

U.  S.  438,  318 

Poindexter  v.  Greenhow,  114  U. 

S.  270,  7 

Pointer  v.  United  States,  151  U. 
S.  396, 

178,  179,  218,  279,  280^ 
281,  934 
Pollock  V.  Farmers  Loan  &  Trust 

Co.,  158  U.  S.  601,  7 

Polousky  V.  Penn.  R.  R.  Co.,  184 

Fed.  561,  81 

Pooler  V.  United  States,  127  Fed. 

509,  218,  300,  696 

Pordjun   v.    United    States,    237 

Fed.  799,  1114 

Porter   v.   The    State,    124    Ga. 

197,  25 

V.  United    States,     91    Fed. 

494,  178 

Post  V.  Kendal  County,  105  U. 

S.  667,  309  b 

V.  United  States,    135    Fed. 

1,  313 


cm 


TABLE    OF    CASES 


[References  are  to  sections] 


Post  V.  United  States,  161  U.  S. 

583,  134 

Post  Publishing  Co.  v.  Murray, 

230  Fed.  773,  874 

Potter  V.  United  States,  155  U. 

S.  438,  162,  441,  1129.  1131 

Pounds  V.  United  States,  171  U. 

S.  35,  447 

Powell  V.  United  States,  206  Fed. 

400,  584,  592,  598,  599 

Powers  V.  United  States,  223  U.  S. 

303,  115,  129,  148,  328,  3031 

Prdjun  V.  United  States,  237  Fed. 

799,  380 

Preeman  v.  United  States,  244 
Fed.  1, 

1058,    1060,    1061,    1062, 
1063 
Prentis  v.  Cosmos,  196  Fed.  372,       537 
V.  Seu  Leung,  203  Fed.  25,  537 

Press    Publishing    Co.    v.     Mc- 
Donald, 73  Fed.  440,      280,  285 
Prettyman  v.  United  States,  180 
Fed.  30, 

215,    313,    358,    420,    1039, 

1054,  1142,  1147,  11.54,  1169. 

1171 

Price,  In  re,  83  Fed.  830,  97 

Price  V.  Graham,  3  Jones  (N.C), 

545,  61 

V.  Henkel,  216  U.  S.  488,        94,  101 
V.  Illinois,  238  U.  S.  446,  4,  5 

V.  McCarty,  89  Fed.  84, 

92,  94,  97,  99,  530 
V.  United  States.   156  Fed. 

950,  937 

V.  United   States,  165  U.  S. 

311,  349,  872 

V.  United    States,   218   Fed. 

149,        168,  319.  428,  445,  858 
Priddy  v.   Thompson.   204  Fed. 

955.  469 

Prigg  V.  Commonwealth  of  Penn- 
sylvania, 16  Pet.  (U.  S.) 
539,  626 

Pritchett  v.   Sullivan,    182   Fed. 

480,  19 

Prize  Cases,  2  Black  (U.  S.).  635       309 
Prout  V.  Starr,  188  U.  S.  537,  7  a 

Public  Clearing  House  v.  Coyne, 

194  U.  S. 497.  874 

Pundt   V.    Pendleton.    167    Fed. 

997.  544 

Purpura   v.    United   States.    262 

Fed.  473,  336 

Purvine,  In  re,  96  Fed.  192,  615 

Putnam   v.    United    States,    162 

U.  S.  687,  377,  380 

Quarlcs,  In  re,  158  U-  S.  532,       18,  680 

civ 


Queen  v.  Boyes,  1  B.  &  S.  311,  115  a 

».  Cox,  L.  R.  14Q.B.D.  153,  405 
V.  Templeman,      1     Salkeld 

(Engl.  Repts.),  55,  222 
Queenan  v.  Oklahoma,  190  U.  S. 

548,  396 

Quinn,  In  re,  176  Fed.  1020,  94 
Quock  Ting  v.  United  States,  140 

U.  S.  417,  372 

Rabens    v.    United    States,     146 

Fed.  978,  297,  415,  1056 

Rabinowitz  v.  United  States,  222 

Fed.  846,  1049 

Rachel,  The,  v.  United  States,  6 

Cranch  (U.  S.),  329,  190 

Radford   v.    United   States,    129 

Fed.  49,  152.  154,  281,  1037 

Radin  v.  United  States,  189  Fed. 

569,  1039,  1050 

Rahrer,  Re,  140  U.  S.  546,  4,  1304 

Railroad    Tax    Cases,    8    Sawy. 

238,  120 

Ramford  v.  State,  61  111.  365,        450  a 
Ran  V.  United  States,  260  Fed. 

131,  356 

Randall    v.    Baltimore    &    Ohio 

R.  R.  Co.,  109  U.  S.  478,       418 
Rast  V.  Van  Deman  &  Lewis,  240 

U.  S.  342,  4 

Raynor,  In  re,  96  N.  Y.  Supp. 

895,  249 

Reagan    v.    United    States,    157 
U.  S.  301, 

129,  280,  426,  427,  1240 
V.  United   States,    202  Fed. 

488,  64 

Redman  v.  Duehay,  246  Fed.  283,       483 

Reed,  Ex  parte,   100  U.   S.    13,       239 

Reed  v.  State,  28  Ind.  396,  689 

V.  United   States,   224    Fed. 

378, 

530,  628,  637,  647,  649,  650 
V.   United   States,    252   Fed. 

221,  693 

Reggel,  Ex  parte,  114  U.  S.  642, 

627,   628,    632,   635, 

637,   640,   644,   646, 

652 

Reg.  V.  Bodle,  6  C.  &  P.  1S6,  390 

V.  Boulton,  12  Cox  (C.  C), 

87,  1025,  1044 

V.  Boyes,  1  Best  &  S.  311,  122 

V.  Cassidy,  1  F.  &  F.  79,  371 

V.  Esdailo,  1  Fost.  &  F.  213,  264 
V.  Frost,  9  Car.  &  P.  129,  283 
V.  Gumportz,  ot  al.,  92  B.  482,  1057 
V.  Hamilton,  7  C.  &  P.  448,  1056 
V.  Hind,  8  Cox,  Cr.  C.  300,  408 
V.  Jones,  9  C.  &  P.  258.  453 


TABLE    OF    CASES 


[References  are  to  sections] 


Reg.  V.  Parnell,  14   Cox  (C.  C), 

508,  1024 

V.  Peck,  9  Ad.  &  El.  686,  1029 
c.  Reagan,  16 Cox,  Cr.C.  203,  412 
V.  Richardson,  3  Fost.  &  F. 

693,  402 

V.  Rouse,  4  Cox  (C.  C),  7,  689 
V.  Rowlands,  5  Cox  (C.  C), 

466,  1025 

V.  Steel,  2   Moody's  Crown 

Cases  Reserved,  246,  415 

V.  Stell.  C.  &  M.,  2  Moody 

C.  C.  246,  1056 

V.  Thompson,    12    Cox,    Cr. 

C.  202,  363 

v.  Thompson,  16  Q.  B.  832,  1057 
V.  Turberville,  4  Cox  (C.  C), 

13,  689 

V.  Woodhead,  2    Car.  &  K. 

520,  371 

Reich  V.  Tenn.  Copper  Co.,  209 

Fed.  880,  41 

Reichman    v.    Harris,    252    Fed. 

371,  642 

Reid  V.  Jones,  187  U.  S.  153,  545 

Reilley  v.  United  States,  lOG  Fed. 

896,  898,  1050 

Reliford  v.  State,   140  Ga.  777,         47 
Renigar   v.    United    States,    172 

Fed.  646,  155 

Respublica  v.  Buffington,  1  Dall. 

(U.  S.)  60,  248 

V.  Gibbs,  3  Yeates,  429,  114  a 

Resurrection  Gold  Mining  Co.  v. 
Fortune  Gold  Mining  Co., 
129  Fed.  668,  382,  385 

Rex   V.  Abraham,   2  Car.  &  K. 

550,  340 

V.  Bond,  1  B.  &  Aid.  392,  157 
V.  Earl  of  Shaftsbury,  8  How. 

St.  Tr.  817,  115  a 

V.  Ford,  Yelv.  99,  164 

V.  Gill,  2  B.  &  Aid.  204,  260,  1035 
V.  Hamilton,   7    Carr.   &   P. 

448,  260,  415, 1035 

V.  Hood,  1  Mod.  C.  C.  281,  61 
V.  Jones,  4  Barn.  &  Ad.  345,  1029 
V.  Mawbey,  6  T.R.  619,  1057 

V.  Moore,  3  B.  &  Ad.  184,  453 
V.  Osner,  5  East,  304,  61 

V.  Pywell,  1  Stark.  402,  1030 

V.  Reading,  7  How.  St.  Tr. 

259,  115  a 

V.  Robinson,    2    Burr.    799, 

182,  187 

V.  Rogers,  3  Burrows,  1809,       290 

V.  Stock,   Rus.   &  Ry.   138,        946 

V.  Withal,  1  Leach,  88,  176 

Reynolds  v.  Stockton,  140  U.  S. 

254,  16 


Reynolds   v.    United  States,  98 
U.  S.  145, 

73,  280,  283,  286,  293,  434, 
439,  474,  974 
Ricaud  v.  American  Metal  Co., 

246  U.  S.  304,  303 

Rice  V.  Ames,  180  U.  S.  371, 

594,  596,  598,  599,  008,  611 
V.  People,  38  111.  435,  416 

V.  Standard  Oil  Co.,  134  Fed. 

464,  1274 

Richards  v.   United  States,    126 

Fed.  105,  513 

V.  United   States.    175    Fed. 
911, 

180,  219,  298,  318,  345,  348, 
374,  1008,  1032,  1039,  1054 
Richardson  v.  United  States,  181 

Fed.  1,  372 

374,    1147,    1173,   1174,    1177, 
1178,  1179 
Richmond  v.  States,   127  S.  \V. 

823,  450 

Richter,  In  re,  100  Fed.  295,  94,  99 

Riddell    v.    United    States,    244 
Fed.  695, 

446,  1063,  1064,  1067 
Rieger  v.  United  States,  107  Fed. 

916,  1169,  1171 

Riggins,     Ex    parte,     134     Fed. 

404,  680 

Riggins    V.    United    States,    199 

U.  S.  547,  528,  529,  812 

Riggio  V.  United  States,  223  Fed. 

529,  825 

Riley  v.  Allen,  23  Fed.  46,  952 

Rimmerman    v.    United    States, 
186  Fed.  307, 

257,  263,  422,  1060 
Rinker  v.  United  States,  151  Fed. 

755,  257,  263,  397,  872 

Ripon  Knitting  Works  v.  Schrei- 

ber,  101  Fed.  810,  515 

Rippir  V.  United  States,  178  Fed. 

24,  1440, 1447 

Riser  v.  Farr,  24  Ark.  161,  249 

Ritzman  v.  People,  110  111.  362,  399 

Rivalto  V.  United  States,  259  Fed. 

208,  1426 

Roach,  Ex  parte,  166  Fed.  344,       707 
Robb  V.  Connolly,  111  U.  S.  624, 

93,  647,  660 
Robbins   v.    United   States,    229 

Fed.  987,  872 

V.  United  States,    262    Fed. 

126,  1060 

Robert  and  Winnie,  The,  47  Fed. 

84,  672 

Roberts  v.  AUatt,  Moody  &  Mal- 

kin,  192,  115  a 


CV 


TABLE    OF    CASES 


[References  are  to  sections] 


Roberta  v.  Reilly,  116  U.  S.  80, 

534,  628,  629,  632,  635,  642, 
650,  653 
V.  The  State,  14  Mo.  138,  25 

V.  United  States,    126    Fed. 

897.  934,  935 

V.  United   States,    248    Fed. 

873,  693,  806 

Robertson  v.  Baldwin,  165  U.  S. 

275,  124 

Robinson,    Ex    parte,    19    Wall. 

(U.  S.)  505,  507,  521 

Robinson  v.  Richardson,  13  Gray, 

(Mass.)  454,  104  a 

V.  Stearns,  204  Fed.  772,  446 

V.  Suburban  Brick  Co.,   127 

Fed.  804,  1275 

V.  United  States,    172  Fed. 

105,  1019,  1026 

Robnett   v.    United    States,    169 

Fed.  778,  1191 

Rodgers   v.    United    States,    185 

U.  S.  83,  184 

Rodriguez  v.  United  States,  198 

U.  S.  156,  144,  148 

Rogers  v.  Peck,  199  U.  S.  425, 

542,  545,  551 
V.  United  States,  141  U.    S. 

548,  266 

V.  United  States,  180  Fed.  54,     1240 
Rollis  V.  United  States,  246  Fed. 

832,  374 

Roode  v.  State,  5  Nebr.  174,  689 

Rooney   v.    North    Dakota,    196 

U.  S.  319,  192 

V.  United  States,    203    Fed. 

928,  993 

Root  V.  Shields,  20  Fed.  Cas.  No. 

12038,  720 

Rose  V.  United  States,  227  Fed. 

357,  425,  426,  1035,  1062 

Rosen  v.  United  States,  161  U.  S. 
29, 

216,  257,  258,  259,  263,  349, 
465,  872 
V.  United  States,    237    Fed. 

810,  300,  361 

V.  United  States,  245  U.  S. 

467,  300,  361 

Rosenberger   v.    Pacific   Express 

Co.,  241  U.  S.  48,  900 

Roaenfiold  v.  United  States,  202 

Fed.  469,  331 

Rosenthal  v.  United  States,  248 

Fed.  684,  386,  1190 

Rosen wasaer  Bros.,  Inc.,  In  re, 
254  Fed.  171, 

48,  56,  92,  108,  112 
Ross,  In  re.  140  U.  S.  453,  247,  250 
Ross  V.  Leggett,  61  Mich.  445,  31 

cvi 


Ross  V.  Mclntyre,  140  U.  S.  453,       271 
Rosser,  In  re,  96  Fed.  305,  123 

Rossmann  v.  Gamier,  211  Fed. 

401,  305 

Roukous  V.   United   States,    195 

Fed.  353,  1032,  1053 

Roux  V.  Commissioner  of  Immi- 
gration, 203  Fed.  413,  532 
Rowe,  Ex  parte,  7  Calif.  184,          114  a 
Rowe  v.  United  States,  164  U.  S. 

546,  354 

Royal,  Ex  parte,  117  U.  S.  241, 

191,  528,  529,  545 
Roval   Ins.    Co.   v.   Taylor,    254 

Fed.  805,  375 

Royal  Trust  Co.  v.  Washburn 

R.  R.  Co.,  139  Fed.  865,       513 
Royce  v.  Territory  of  Oklahoma, 

5  Okla.  61,  154 

Rudd  V.  United  States,  173  Fed. 

912,         288,  294,  438,  439,  1066 
Rumble    v.    United    States,    143 

Fed.  772,  358,  1060 

Ruos,  In  re,  159  Fed.  252,  405 

Rupert  V.  United  States,  181  Fed. 

87,  903 

Rush,  Ex  parte,  246  Fed.  172,  538 

Russel  V.  People,  44  111.  508,  447 

V.  The  State,  37  Texas  Crim. 

Repts.  314,  31 

Ruthenberg    v.     United    States, 

245  U.  S.  480, 

132,  276,  286,  993 
Ruthven  i).   United  States,   222 

Fed.  70,  1063 

Ryan  d.  United  States,  216  Fed. 
13, 

178,  179,  237,  362,  374,  893, 
895,  1049,  1058 

Sachs,  In  re,  190  U.  S.  1,  47 

Safford  v.  United  States,  233  Fed. 

495,  382,  386,  407 

V.  United  States,    252    Fed. 

471,  65,  66,  786 

St.  Clair  v.   United  States,   154 
U.  S.  134, 

10,  277,  279,  281,  339,  343, 
347,  376,  377,  452,  934 
St.  Louis  Cordage  Co.  v.  Miller, 

126  Fed.  495,  418 

Salas  V.  United  States,  234  Fed. 

842,  774,  1019,  1038 

Sales  V.  United  States,  258  Fed. 

597,  872 

Salla  V.  United  States,  104  Fed. 

544,  862,  1041 

Samuels   v.    United    States,    232 
Fed.  536, 

358,  393,  lOCO,  1063,  1065 


TABLE    OF    CASES 


[References  are  to  sections] 


Sam  Yick  v.  United  States,  240 

Fed.  60,  349 

Sandals    v.    United    States,    213 

Fed.  569. 

293,  294,  422,  438.  1004,  1060, 
1061.  1066 
Sandoval  v.  Priest,  210  Fed.  814,       303 
Sanford  v.  Nichner,  5  Mod.  a.  c. 

286,  61 

V.  Nicols,  13  Mass.  286,  27 

Santa  Clara  County  v.  Southern 

Railway   Co.,    118    U.    S. 

394,  17  c 

Sapir  V.  United  States,  174  Fed. 

219,  360 

Satterlee  v.  Matthewson,  2  Pet. 

(U.  S.)  380,  193 

Savage  v.  Jones,  225  U.  S.  501, 

3,  1073 
V.   United  States,   213    Fed. 

31,  432 

Savin,  Ex  parte,  131  U.  S.  267, 

136,  508 
Sawyer,  In  re,  124  U.  S.  200, 

7  a,  513,  536 
Sawyer    v.    United    States,    202 

U.  S.  150,  385,  427 

Scharsmith  v.  Knapp,  164  N.  Y. 

Suppl.  578,  31 

Scheinberg  v.  United  States,  213 

Fed.  757,  358,  1061,  1065 

Schell  V.  United  States,  261  Fed. 

593,  708 

Schenck  v.  United  States,  decided 

Mar.  3,  1919,  109 

Schenk  v.  United  States,  249  U.  S. 

47,  15,  115 

Schick  V.  United  States,  195  U.  S. 

65,  266,  1445 

Schlippenbach,  In  re,   164  Fed. 

783,  587 

Schmidt   v.    United   States,    133 

Fed.  257,  741 

Schoetts  V.  Drake,  139  Wise.  18,         29 
Schofield  V.  Chicago  M.  &  St.  P. 

R.  R.  Co.,  14  U.  S.  615,       418 
Schooner  Betsy,  1  Mason  (U.  S.) , 

354,  1242 

Schooner   Mary,   1   Gall.   206,         1242 
Schorer,  Ex  parte,  197  Fed.  67, 

587,  588,  622 
Schraubstadter  v.  United  States, 

199  Fed.  568,  1074 

Schulman,  In  re,  177  Fed.  191,       513 
Schultz  V.  United  States,  200  Fed. 

234,  357,  358,  360,  810 

Schwab  V.   Berggren,    143   U.  S. 

442,  247,  255 

Schwartz  v.   United  States,  217 

Fed.  866,  308,  522 


Schwartzberg  v.  United  States, 
241  Fed.  348, 

280,  1060,  1061,  1062 
Schwarz  v.  Poehlmann,    178  111. 

App.  235,  24 

Scott,  In  re,  95  Fed.  815,  123 

Scott  V.  Flowers,  60  Nebr.  675,  27 

V.  State,  6  Tex.  Civ.  App.  343.        24 

V.  United    States,    130    Fed. 

429,  1009, 1182 

V.  United   States,    165    Fed. 

172,  1012,  1026 

V.  United   States,    172  U.    S. 

343,  856 

Sears  v.  United  States,  264  Fed. 

257,  700 

Sears,  Roebuck  &  Co.  v.  Federal 
Trade  Commission,  258 
Fed.  307.  1342 

Seebach    v.    United    States,    262 

Fed.  886,  1335 

Seidler  v.  United  States,  228  Fed. 

336,  1086 

Selvester  v.   United  States,    170 

U.  S.  262.  161 

Semmes  v.  United  States,  91  U.  S. 

21,  249,  250 

Serra  v.  Mortiga,  204  U.  S.  470,       271 
Sexton  V.  California,   189  U.   S. 

319,  806,  807,  987 

Shadgett    v.    Clipson,    1    Chitt. 

Crim.  Law,  44,  61 

Shaffner   v.    United   States,    244 

Fed.  140,  1109 

Shakman  v.  Potter,  98  la.  61,  288 

Shannon   v.   United   States,    160 

Fed.  870,  1191 

Sharon  v.  Hill,  24  Fed.  726,  950 

Sharp  V.  United  States,  138  Fed. 

878,  700,  778 

Shaw  V.  Railroad  Co.,  101  U.  S. 

557,  158 

V.  State,  79  Miss.  21,  47 

V.  United    States,    165   Fed. 

174,  856 

V.  United  States,    180   Fed. 

348,  326,  327,  335 

Shawnee  Compress  Co.  v.  Ander- 
son, 209  U.  S.  423,  1272 
Shawnee  Mill  Co.  v.  Temple,  179 

Fed.  517,  1074 

Shea,  In  re,  166  Fed.  180,  513 

Shea  V.  United  States,  236  Fed. 

97,         358, 874,  1019,  1035,  1050 
V.  United   States,    251    Fed. 
433, 

209,293,426,443,  1061, 
1062,  1065 
Shecil  V.  United  States,  226  Fed. 

184,  372 

cvii 


TABLE    OF   CASES 


[References  are  to  sections] 


Sheinberg,  In  re,  223  Fed.  218,     1187 
Shelley    v.    United    States,    229 

U.  S.  239,  1086 

Shelp  V.  United  States,  81  Fed. 

694,  181,  214 

Shelvin  Carpenter  Co.  v.  Minne- 
sota, 218  U.  S.  57,  229 
Shepard    v.    United    States,    236 

Fed.  73,  318,  1035 

V.  United  States,    160   Fed. 

584,  349,  872 

Shera,  In  re,  114  Fed.  207,         122,  123 
Sheridan   v.    United   States,    236 

Fed.  305,       358,  996,  1136,  1163 
Shiver  v.  United  States,  159  U.  S. 

491,  710,  711 

Shores,  Ex  parte,  195  Fed.  627,       799 
Short  V.  United  States,  221  Fed. 

248,  397 

Showalter  v.  United  States,  260 

Fed.  719,  1147 

Shuford  V.  Cain,  1  Abb.  (U.  S.) 

302,  475 

Shugart  v.  Cruise,  260  Fed.  36,  18 

Sibray  v.  United  States,  185  Fed. 

401,  527 

Sidebotham  v.  United  States,  253 

Fed.  417,  218,  443,  1062 

Siebold.  Ex  parte,  100  U.  S.  371, 

26,  27,  61,  191,  528,  530 
Sierra  v.  United  States,  233  Fed. 

37.  1240 

Sigmon  v.  Shell,  165  N.  C.  582,         19 
Silverthorne    Lumber    Co.    and 
Silverthorne     v.      United 
States,    decided   Jan.    26, 
1920,  104  h,  105,  107 

Silvester  v.    United   States,    170 

U.  S.  2G2,  232,  455 

Simon,  Ex  parte,  208  U.  S.  144,       529 
Simmons  v.  The  State,  116  Ga. 

583,  45 

V.  United    States,  142  U.  S. 

148,  10,  231,  293,  437 

V.  Vandyke,  138  Ind.  380,  19 

Simon  v.  Craft,  182  U.  S.  427,  16 

Simpson,  In  re,  119  Fed.  620,  953 

Simpson   v.    United   States,    184 

Fed.  817,  422,  463 

V.  United    States,    229    Fed. 

940,  37,  2.32,  1142,  1167 

V.   United   States,   241    Fed. 

841,  60 

V.  United    States,    245    Fed. 

278,  1113 

V.  United  States,  245    U.  S. 

604,  60 

Sinflair  v.  State,  87  Miss.  330,        319  a 
Slaughter  House  Cases,  16  Wall. 

(U.  S.)  36.  4,  12,  15 

cviii 


Sloane  v.  Schomaker,  136  Pa.  382.         31 
Smith,  Ex  parte,  3  McLean,  121, 

638,  653 

Smith,  In  re,  112  Fed.  509,  123 

Smith  V.  Burnham,  3  Sumn.  435,       336 

V.  Eames,  36  Am.  Dec.  515,       283 

V.  Government      of      Canal 

Zone,  249  Fed.  273,  685 

V.  Lee,  13  Fed.  28,  81 

V.  Maryland,  18  How.  (U.  S.) 

71,  104  b 

V.  Townsend,  148  U.  S.  490,  182 
V.  United  States,  94  U.  S.  97,  223 
V.  United   States,    157    Fed. 

721,  139,  434,  680 

V.  United   States,    208    Fed. 

131,  215,  313,  1004,  1060 

V.  United  States,  231  Fed.  25, 

299,  459,  461,  1039 
Smyth  V.  Ames,  169  U.  S.  466,  7  a 
Snead  v.  Bonnoil,  166  N.  Y.  325, 

18,  28,  29 
Snitkin  v.  United  States,  decided 
by   U.    S.    C.    C.  A.    7th 
Cir.  Mar.  30,  1920, 

157,  184,  187,  434,  445.  466, 
469 
Snow,  In  re,  120  U.  S.  274,         468,  975 
Snow  V.  United  States,  118  U.  S. 

346,  974 

Sobol,  In  re,  242  Fed.  487,  513 

Soliss  V.  General  Elec.  Co.,  213 

Fed.  204,  469 

Sonnenberg  v.  United  States,  264 

Fed.  327,  1192 

Sorensen  v.   United  States,    143 

Fed.  820,  326,  334,  336 

Sorenson  v.   United  States,    168 
Fed.  785, 

324,  345,  413,  851,  853 
Sparf  V.  United  States,  156  U.  S. 
51. 

327,  334.  418,  419,  433,  434, 
452 
Sparks  v.  Territory  of  Oklahoma, 

146  Fed.  371,  461 

V.  United    States,    241    Fed. 

777.  342,  1061,  1065 

Spear  v.  United  States,  228  Fed. 

485,  1039,  1061,  1063.  1066 

V.  United   States.  246    Fed. 

250,  265,  323,  1061 

Spencer,  Ex  parte,  228  U.  S.  652,       474 
Spencer  v.  Road,  217  Fed.  508,         1054 
V.  United    States,    169  Fed. 

562,  276,  1158 

Spies,  Ex  parte,  123  U.  S.  131,       286 
Spraigue  v.  Thompson.  118  U.  S. 

90,  7 

Spring  Co.  v.  Edgar.  99  U.  S.  645.       446 


TABLE    OF    CASES 


[References  are  to  sections] 


Springville  v.  Thomas,  166  U.  S. 

707,  447 

Sprinkle   v.    United   States,    141 

Fed.  811,  306,  339,  349 

V.  United    States,    244   Fed. 

Ill,  1061 

Spurr  V.  United  States,  87  Fed. 

701,  360,  370 

V.  United  States,  174  U.  S. 

728,  1127. 1131 

Stabler  v.  Comm.,  95  Pa.  318,  453 

Stager  v.  United  States,  233  Fed. 

510,  1037,  1049,  1054 

Standard  Fashion  Co.  v.  Ma- 
grane  Houston  Co.,  254 
Fed.  493,  1339 

Standard  Oil  Co.  v.  United  States, 
221  U.  S.  1, 

1264,   1267,    1269,   1270,   1272, 
1273,  1274,  1284,   1308,   1309, 
1314,  1315 
Standard  Sanitary  Manufactur- 
ing Co.  V.  United  States, 
226  U.  S.  20, 

1267,  1274,  1315,  1329 
Stanley    v.    United    States,    195 

Fed.  896,  1042 

Stanton  v.  Seymour,  5  McLean 

(U.  S.),  267,  27,  61 

Starr  v.  United  States,  153  U.  S. 

614,  293,  437,  438,  439,  1066 

V.  United  States,  164    U.  S. 

627,  352,  444 

State  V.  Anderson,  1  Hill  (S.  C), 

327,  19 

V.  Anderson,    30   La.    Ann. 

557,  689 

V.  Bardwell,  72  Miss.  535,  1133 
V.  Blackman,  108  La.  121, 

297,  423 
V.  Briggs,  34  Vt.  501,  689 

V.  Butler,  26  W.  Va.  90,  453 

V.  Butler,  35  W.  Va.  90,  453 

V.  Bydee,  17  Kansas,  462,  450 

V.  Chamberlain,  89  Mo.  129,  33 

V.  Coley,  114  N.  C.  879,  190 

V.  Cooper,   1  Green  (N.  J.), 

361,  176 

■0.   Corley,  4  Baxt.   (Tenn.) 

410,  689 

V.  Cousins,  58  Iowa,  250,  323 

V.  Craft,  164  Mo.  631,  290 

V.  Crogan,  8  Iowa,  523,  709 

V.  Cross,  53  Oregon,  462,  288 

V.  Cross,  101  N.  Car.  770,  1133 

V.  Daley,  29  Conn.  272,  190 

V.  Davis,  50  S.  C.   405,  31 

V.  Dorrance,  86  Iowa,  428,  689 
V.  Douglas,  44  Kans.  618,  1030 
V.  Duggan,    15  R.  X  403,  183 


State  V.  Evans,  15  Mont.  539,  689 

V.  Evans,  161  Mo.  95,  18 

V.  Fields,  98    Iowa,    748,  1133 
V.  Floyd,    81    N.    E.    (Ind.) 

1153,  689 
V.  Funk,  30  L.  R.  A.  (n.  s.) 

211,  87 

V.  Goetz,  34  Mo.  85,  180 

V.  Green,  66  Mo.  631,  104  b 

V.  Griffin,  87  Mo.  608,  45 

V.  Hendrick,  179  Mo.  300,  451 
V.  Herber,  L.  R.  A.  1918  F. 

396,  87 

V.  Hunter,  106  N.  C.  796,  191 

V.  Hurley,  79  Vt.  28,  453 

V.  Jackson,  7  S.  C  283,  10.57 

V.  Kring,  64  Md.  591,  290 

V.  Lee,  22  Minn.  407,  319  a 

V.  Leonard,  171  Mo.  622,  689 

V.  Lewis,  50  Ohio,  179,  19,  31 

V.  Lorenzy,  109  Pac.  1064,  450 

V.  McClear,  11  Nev.  39,  283 

V.  McManus,  129  Wise.  659,  689 

V.  Murphy,  87  N.  J.  L.  515,  47 

V.  Nowell,  58  N.  H.  314,  114  a 
V.  Osborn,   54  Oregon,    289, 

297,  423 

V.  Pagels.  92  Mo.  300,  288 

V.  Papa,  80  Atl.  12,  47 
V.  Pierce,  8  Iowa,  231,             ,     689 

V.  Price,  10  Rich.  L.  351,  283 

V.  Pritchett,  219  Mo.  696,  21 
V.  Randall,       173      N.      W. 

(Minn.)  425,  445 

V.  Sheppard,  49  W.  Va.  582,  370 

V.  Sims,  117  La.  1036,  47 
V.  Smith,    8    Yerg.    (Tenn.) 

150,  689 

V.  Stoll,  17  Wall.  (U.  S.)  425,  469 

V.  Stone,  69  S.  E.  (S.  C.)  659,  454 

V.  Taylor,  70  Vt.  1,  19 

V.  Thurston,  2  McMul.  393,  467 

V.  Tuller,  34  Conn.  280,  1133 

V.  Twitty,  9  N.  C.  248,  416 

V.  Van  Auken,  98  Iowa,  674,  689 
V.  Vaughan,   136  Mo.    App. 

645,  363 
V.  Warford,  106  Mo.  55,      297,  423 

V.  Williams,  18  Wash.  47,  290 

V.  Woodrow,    56   Kan.    217,  416 

V.  Woods,  104  Ind.   444,  689 

State    of    Maryland    v.    General 
Stevedoring       Co.,       213 

Fed.  51,  893 

State  of  Missouri  v.  Daubert,  42 

Mo.  242,  180 

State  of  New  York  v.  Eno,  155 

U.  S.  89,  111 

Statler  v.  United  States,  157  U.  S. 

277,  825 

cix 


TABLE  OF  CASES 


[References  are  to  sections] 


Staton  V.  United  States,  88  Fed. 

253,  689,  690 

Stearns  v.  United  States,  152  Fed. 

900,  418,  422, 1008 

Steers  v.  United  States,  192  Fed. 

1,  276,  320,  1292,  1316 

Stegall  V.  Thurman,  175  Fed.  813, 

402,  545 
Steigman  v.  United  States,  220 

Fed.  63,  1042 

Stein  V.  Fleischman  Co.,  237  Fed. 

679,  1253 

Steiner,  In  re,  195  Fed.  299,     513,  517 
Steinhardt  v.  United  States,  191 

Fed.  798,  1081 

Stephens  v.  People,  38  Mich.  739,       283 
V.  State,   107  Ind.    185,  453 

Stern  v.  United  States,  223  Fed. 
762, 

215,   358,   360,    1060,    1063, 
1065 
Sternaman,    Ex   parte,    77    Fed. 

595,  598 

Stevens  v.  Fuller,  136  U.  S.  468,       528 
V.  McClaugliry,  207  Fed.  18, 

468,  531 
Stevenson  v.   United   States,   86 

Fed.  106,  354,  934 

V.  United  States,  162  U.  S. 

313,  935 

Stewart  v.  Feeley,  118  la.  524,  29 

V.  United  States,  119  Fed.  89, 

94,  99,  100,  1063 
V.  United   States,   211    Fed. 

41,  386,395,407,444 

V.  United   States,   236  Fed. 

8.38,  513 

Stirlen  v.  United  States,  183  Fed. 

302,  1054 

Stockdale  v.   Insurance  Co.,   20 

Wall.  (U.  S.)  323,  175 

Stockslager  v.  United  States,  116 

Fed.  590,  322 

Stockton  V.   United  States,   205 

Fed.  462,  1060, 1061 

Stokes  V.  United  States,  157  U.  S. 

187,  1041 

V.  United    States,    264  Fed. 

19,  434,  438 

Stone  V.  United  States,  167  U.  S. 

178,  111,  426 

Stoneberg,     et     al.     v.    Morgan, 
Warden,  246  Fed.  98, 

184,  2.39,  469,  531 
Storti  V.  Massachusetts,  183  U.  S. 

138,  542,  559,  503,  564 

Stout  V.  United  States,  227  Fed. 

799,  298,  426,  443 

Strasshcim  v.   Daily,   221   U.   S. 

280,  631,  037 

CX 


Strauss,  In  re,  126  Fed.  327, 

530,  567,  628,  638,  642,  653 
Strauss,    Matter   of,    197   U.    S. 

324,  643 

Streep  v.  United  States,  160  U.  S. 

128,  202 

Strieker,  Ex  parte,  109  Fed.  145,       517 
Strong  V.  Daniels,  5  Porter  (Ind.) , 

348,  191 

Strozzi  V.  Wines,  24  Nev.  389,  61 

Stuart    V.    Reynolds,    204    Fed. 

709,  313,  507,  512,  513 

Stubbs    V.    United    States,    249 

U.  S.  571,  1060 

Stupp,  In  re,   11  Blatch.  124,  582 

In  re,  12  Blatch.  501, 

533,  602,  607,  611 
Sturr  V.  Beck,  133  U.  S.  541,  1216 

Sugar  V.  United  States,  252  Fed. 

"   79,  1039, 1039 

Sugarman  v.  United  States,  249 

U.  S.  182,  14,  435 

Summertime  v.  Local  Board,  248 

Fed.  832,  538 

Sunner  v.  Beeler,  50  Mo.  341,        "       27 
Suslak    V.    United    States,    213 

Fed.  913,  1108 

Sussex  Peerage  Case,   11   CI.  & 

Fin.  85,  407 

Sutton  V.  People,  119  111.  250,  399 

V.  People,  145  111.  279,  415 

Swafford  v.  Templeton,  185  U.  S. 

487,  680 

Swan,  In  re,  150  U.  S.  637,  531 

Swarts  V.  Siegel,  117  Fed.  13,  183 

Swearingen  v.  United  States,  161 

U.  S.  446,  872 

Sweet  V.  United  States,  228  Fed. 

421,  469 

Swift  &  Co.  V.  United  States,  196 

U.  S.  375, 

1281,  1288, 1303,  1307,  1314 
Sykes  v.  United  States,  204  Fed. 

909,  ;  374 

Talbot  r.  Janson,  3  Dallas  (U.  S.), 

133,  070 

Talbott  V.    United    States,    208 

Fed.  144,  180,  219,  303 

Taliaferro  v.  United  States,  213 

Fed.  25,  356 

Tarn  Shi  Yan  v.  United  States, 

224  Fed.  422,  1087 

Tapack    v.    United    States,    220 

Fed.  445,  1032,  1039 

Taylor,  In  re,  118  Fed.  196,  582 

Taylor     V.     Taintor,      16     Wall 

(U.  S.) ,  366,         7  n,  626,  644,  058 
V.  United     States,    3     How. 

(U.  S.)  197,  182 


TABLE    OF    CASES 


(References  are  to  sections] 


Taylor  v.  United  States,  89  Fed. 

954,  365,  413 

V.  United   States,    231    Fed. 

9.38,  1191 

V.  United    States,    244    Fed. 

321,  459,  9.30 

Teese  v.   Huntingdon,   23   How. 

(U.  S.)  2,  385 

Tennessee    v.    Jackson,    36    Fed. 

258,  635,  638 

Terlindon  v.  Ames,  184  U.  S. 
270, 

101,  533,  551,  575,  576,  607 
Termes  de  la  Ley,  voc.  Challenge, 

2  Hawk.  Chap.  43,  §  84,         283 
Terrell,  In  re,  51  Fed.  213,  94 

Terry,  Ex  parte,  128  U.  S.  289, 

507,  526 
Terry  v.  United  States,  235  Fed. 

701,  150 

T.  F.  Oakes,  The,  82  Fed.  759,  952 
Thalheim  v.  State,  38  Fla.  169,  45 
Thaw,  Ex  parte,  209  Fed.  954,  651 

Thaw,  In  re,  172  Fed.  288,  547 

Thayer  v.  Spratt,  189  U.  S.  346,  1191 
Thiede   v.    Utah   Territory,    159 

U.  S.  516,  283,  286 

Thlinket  Packing  Co.  v.  United 

States,  236  Fed.  109,  422 

Thomas  v.  American  Freehold 
Land  and  Mortgage  Co., 
47  Fed.  550,  475 

V.  United   States,    156    Fed. 
897, 

237,   358,   359,    1009,    1022, 
1026,  1032,  1034, 1039,  1053 
Thompson  v.  Duehay,  217  Fed. 

484,  490 

V.  Missouri,    171  U.  S.  380,       196 
V.  People,  96  111.  158,  453 

V.  United  States,  144  Fed.  14, 

358,  810 
V.  United  States,    155  U.  S. 

271,  226,  231 

V.  United    States,    202  Fed. 

401,  361,  812,  856 

V.  United   States,    204   Fed. 

973,  996 

V.  United   States,    256    Fed. 

616,  708 

V.  United   States,    258   Fed. 

196,  1093 

V.  Utah,  170  U.  S.  343, 

138,  192,  194,  266,  272,  274 
Thomson  v.   United  States,  242 

Fed.  401,  407 

Thorn  v.  Worthing  Skating  Rink 

Co.,  L.  R.  6  Ch.  Div.  415,       392 
Thorpe  v.  Adams,  L.  R.  6  C    P. 

135,  "  184 


Three  Friends,  The,  78  Fed.  175,       672 
166  U.  S.  1,  672,  674,  677 

Thurlow    V.     Massachusetts,     5 

How.  504,  1304 

Thurston  v.   United  States,  241 

Fed.  3.35,  1093,  1099 

Tiberg  v.  Warren,  192  Fed.  458, 

646,  650 
Tiburcio  Parrott,  In  re,   1  Fed. 

481,  681 

Tiffany  v.  National  Bank  of  Mis- 
souri,    18    Wall.    (U.    S.) 

409,  182 

Tilden,  Ex  parte,  218  Fed.  920,  989 
Tillinghast,   Ex  parte,   4  Peters 

(U.S.),  108,  518 

Tillinghast,  In  re,  233  Fed.  712,  33 

Tillinghast  v.  Richards,  225  Fed. 

226,  37,  1019,  1035,  1039 

Timothy  v.  Simpson,  6  C.  &  P. 

499,  31 

Tingle  v.  United  States,  87  Fed. 

320,  263,  360,  427,  877 

Tinkoff,  Ex  parte,  254  Fed.  222, 

524,  528 
Tinsley  v.  Anderson,   171   U.   S. 

101,  528,  545 

V.  Treat,  205  U.  S.  20, 

10,  67,  93,  94,  95,  96,  97,  99, 
101 
Tjosevig  V.   United   States,   255 

Fed.  5,  213 

Tobias,  In  re,  215  Fed.  815,  128 

Tobin    V.    Bell,    73    App.    Div. 

(N.  Y.)  41,  31 

Todd  V.  United  States,  158  U.  S. 

278,         9,  66,  69,  159,  160,  182 
V.  United    States,    221   Fed. 

205,  407 

Toledo,  A.  A.  &  N.  M.  Ry.  Co.  v. 

Pennsylvania  Co.,  54  Fed. 

746,  513,  1017 

Toledo  Newspaper  Co.  v.  United 

States,  247  U.  S.  402, 

507,  508,  513,  523 
Tomkins  v.   Paterson,   238   Fed. 

879,  41 

Tom  Tong,  Ex  parte,  108  U.  S. 

556,  524 
Toothman  v.  United  States,  203 

Fed.  218,  358,  872 

Toscano,  Ex  parte,  208  Fed.  938,  675 
Totten  V.  United  States,  92  U.  S. 

105,  402 

Towe  V.  United  States,  238  Fed. 

557,  459,  465 
Town  of  Odell  v.  Schroeder,  58 

111.  353,  18 

Townsend   v.    Little,    109    U.    S. 

504,  469 

CXI 


TABLE    OF    CASES 


[References  are  to  sections] 


Tracy,  In  re,  177  Fed.  532,  120 

Tracy  v.  People,  97  111.  101,  399 

Trade-Mark  Cases,  100  U.  S.  82,  4 

Trafton    v.    United    States,    147 

Fed.  513,  458 

Traina,  In  re,  248  Fed.  1004,  538 

Travelers'  Ins.  Co.  v.  Mosley,  8 

Wall.  (U.  S.)  .397,  339 

Trent  v.  United  States,  228  Fed. 

648,  358,  412,  1000,  1065 

Tri-State  Coal  &  Coke  Co.,  In  re, 

253  Fed.  605,  104  b,  108,  112 

Truax  v.   Raich,   239  U.   S.  33,        7  a 
Truesdel  v.  Combs,  33  Ohio  St. 

186,  61 

Tubbs  V.  United  States,  105  Fed. 

59,  257,  258,  259,  872 

Tuchfeld  v.  Plattner,  116  N.  Y. 

Supp.  693,  288 

Tucker,  Ex  parte,  212  Fed.  569,       538 
Tucker  v.  Alexandroff,  183  U.  S. 

424,  576,  584 

F.  United  States,    151  U.  S. 

164,  325,  337.  426 

v.  United  States,    196  Fed. 

260,  10,  222 

V.  United   States,    224   Fed. 

833,  357,  422,  1065,  1067 

V.  Williamson,  229  Fed.  201,      1093 
Turner  v.  American  Baptist  Mis- 
sionary Union,  5  McLean, 
344,  711 

V.  United    States,   2   Hayw. 

&  H.  343,  340 

V.  United    States,    259    Fed. 

103,  993 

Turners  v.  United  States,  66  Fed. 

280,  178 

Twining  v.  New  Jersey,  211  U.  S. 

78,  229 

V.  United    States,    141    Fed. 

41,  1172 

Tyler's  Case,   18  Court  Claims, 

25,  770 

Tyomies  Publishing  Co.  v. 
United  States,  211  Fed. 
385,  872 

Ulmer  v.  United  States,  219  Fed. 

041,  189,  216,  786 

Ulrich,  Ex  parte,  42  Fed.  587,  231 

Union  Dairy  Company  v.  United 

States,  250  Fed.  231,  1078 

Union  Ins.  Co.  v.  United  States, 

6  Wall.  (U.  S.)  759.  40 

Union  Naval  Stores  Co.  v.  United 

States,  240  U.  S.  284,  712 

Union  Pacific  Coal  Co.  v.  United 

States,  173  Fed.  7.37, 

318,  420,  1289 

cxii 


Union  Pacific  R.  R.  Co.  v.  Belek, 

211  Fed.  699,  19,  642 

V.  Field,  137  Fed.  14,  432 

United  Copper  Sec.  Co.  v.  Amal- 
gamated Copper  Co., 
232  Fed.  574,  1268 

United  States,  Ex  parte,  226  U. 

S.  420,  184,  469 

Ex  parte,  242  U.  S.  27,         241,  473 
United  States  v.  Abrams,  18  Fed. 

823,  824 

V.  Abrams,   2.30  Fed.  313, 

105,  107,  108 
V.  Aczel,  219  Fed.  917,  680,  1061 
V.  Adams  Express  Co.,    119 

Fed.  240,  261 

V.  Adams   Express  Co.,  229 

U.  S.  381,  1346 

V.  Adams   Express  Co.,  230 

Fed.  531,  62 

V.  Adler,  49  Fed.  736, 

1029,  1041,  1047 
V.  Ah  Hung.  243  Fed.  762,  1099 
V.  Ah  Won,  97  Fed.  494,  689 

V.  Akers,  232  Fed.  963,  1061 

V.  Albert,  45   Fed.  552, 

689,  808.  809,  812 
V.  Albert    Steinfeld    &   Co., 

209  Fed.  904,  309 

V.  Allen,  47  Fed.  696, 

1173,  1177,  1180,  1181 
V.  Allen,  150  Fed.  152,  886 

V.  Allis,  73  Fed.  165, 

1151,  1173,  1177 
V.  Allred,  155  U.  S.  591,  66 

V.  Almeda,  2  Wheel  Cr.  570.         16 
V.  A  Lot  of  Jewelry.  59  Fed. 

684,  1239 

V.  Ambrose,  3  Fed.  283,  153 

V.  Amedy,  11  Wheat.  (U.  S.) 

.392,  318 

V.  American  Column  & 
Lumber  Co.,  263  Fed. 
147,  1330, 1335 

V.  American      Laboratories, 

222  Fed.    104,  1076 

V.  American    Naval    Stores 

Co.,  172  Fed.  455,  1278 

V.  American  Naval  Stores 
Co.,  186  Fed.  592, 

1267,  1316,  1321 
V.  American    Tobacco    Co., 

164  Fed.  700,  1294 

V.  American  Tobacco  Co., 
221  U.  S.  106, 

1272,  1287,  1288,  1309, 
1315 
V.  Andem,  158  Fed.  996,  950 

V.  Angell,  11  Fed.  34, 

71,  72,  73,  339,  376 


TABLE    OF    CASES 


[References  are  to  sections] 


United  States  v.  Antikamnia 
Chemical  Co.,  231  U.  S. 
654,  1073,  1075 

V.  Antz,  16  Fed.  119,  140,  276 
D.  Appel,  211  Fed.  495,  513 

V.  Arjona,  120  U.  S.  479, 

2,  188,  817 
V.  Armour  &  Co.,  142  Fed. 

808,  1329 

V.  Armstrong,  2  Curt.  446,  934 
V.  Armstrong,  59  Fed.  568,  796 
V.  Ash,  75  Fed.  651,  309 

V.  Ash  Sheep  Co.,  250  Fed. 

592,  182 

V.  Atlanta  Journal  Co.,  185 

Fed.  656,  1039 

j).Avnes,222Fed.474,  76,139,181 
V.  Ayres,  46    Fed.    651,  276 

V.  Babcock,  3  Dill.  581, 

313,  412,  1029,  1035,  1050 
r.  Badders,  240U.  S.  391,  877,879 
V.  Baird,  48  Fed.  554,  726 

V.  Baker,  5  Blatch.  6,  965 

V.  Baker,  5  Ben.  25,  730 

V.  Baker,  243  Fed.  741, 

1035,  1039,  1055 
V.  Bale,  156  Fed.  687,  711,  1191 
V.  Ball,  163  U.  S.  662, 

180,  226,  231,  232,  243,  389 
V.  Barber,  157  Fed.  889.  1049 

V.  Barber,  219  U.  S.  72, 

207,  215,  1049 
V.  Barber  Lumber   Co.,  172 

Fed.  948,  1191 

V.  Barker,  4  Wash.   (C.  C.) 

464,  407 

V.  Barlow,  1  Cr.  C.  C.  94,  329,  352 
V.  Barnaby,  51  Fed.  20, 

937,  938,  950 
V.  Barnes,  222  U.  S.  513,  1435 

V.  Earnhardt,  17  Fed.  579,  465 
V.  Barnhart,  22  Fed.  285, 

229,  230,  935 
V.  Barnhart,  33  Fed.  459,  689 

V.  Barnow,  239  U.  S.  74,  693,  1037 
V.  Barrett,  65  Fed.  62,  1032 

V.  Barrett,  111  Fed.  369,  811,  812 
V.  Barrett,  187  Fed.  378,  513 

V.  Barry,  260  Fed.  291,  696 

V.  Bartow,  10  Fed.  874,  464 

V.  Bascadore,  2  Cr.  C.  C.  30,  333 
V.  Bassett,  5  Utah ,  131 ,  287 

».  Bates, 2 Cranch(C. 0,405,  424 
V.  Bathgate,  246  U.  S.  220, 

6,  159,  680,  1013 
V.  Battiste,  2  Summ.  240,  908 

V.  Baugh,  1  Fed.  784,  856 

V.  Baumert,  179  Fed.  735, 

48,  56,  58,  65,  134 
V.  Baxter,  221  Fed.  473,  1061 


United  States  v.  Bayaud,  16  Fed. 

376,  200,  262,  464 

V.  Bayaud,  21  Blatch.  (U.  S. 

Cir.  Ct.)  217,  220 

V.  Beacham,  29  Fed.  284,  943 

V.  Beavers,  125  Fed.  778,  67,  508 
V.  Bedgood,  49    Fed.  54,  306 

V.  Beebe,  149  Fed.  618,  812 

V.  Beerman,   5    Cranch    (C. 

C.),412,  467 

V.  Bejandid,  1  Woods,  294,  825 
V.  Bell,  81  Fed.  830,  126,  127,  129 
V.  Belt,  128  Fed.  168,  804 

V.  Benecke,  98  U.  S.  447,  1203 

V.  Benedict,    165  Fed.  221,  872 

V.  Benner,    Baldw.    (C.    C.) 

234,  1219,  1221 

V.  Benson,  31  Fed.  896,  279 

V.  Benson,  70  Fed.  591, 

1029,  1035,  1036,  1037,  1039, 
1047 
V.  Berry,  4  Fed.  779,  69 

V.  Berry,  24  Fed.  780,  33 

V.  Biebusch,  1  Fed.  213,  311,  361 
V.  Biggs,  157  Fed.  264,  1049 

V.  Biggs,  211  U.  S.  507, 

157,  182,  189,  1008,  1029, 
1039,   1047,   1191 
V.  Billingsley,  242  Fed.  330, 

90,  223 
V.  Billingsley,  249  Fed.  331,  220 
V.  Birdsall,  195  Fed.  980,  157 

V.  Birdsall,  233  U.  S.  223,  700,  778 
V.  Bittinger,    24    Fed.    Cas. 

No.    14598,  796 

V.  Bixby,  6  Fed.  375,  760 

V.  Black,  160  Fed.  431, 

94,  96,  101,  1035,  1049 
V.  Blackman,  17  Fed.  837,  856 
V.  Blair-Murdock    Co.,    228 

Fed.  77,  671 

V.  Blaisdell,  3  Ben.  132,  149 

V.  Blendauor,  122  Fed.  703,  710 

V.  Bloomgart,  2  Ben.    356,  746 

V.  Boese,  46  Fed.  917,  331 

V.  Bogart,  9  Ben.  314,  828 

V.  Bohl,  125  Fed.  625,  1070 

V.  BoUes,  209  Fed.  682,  134,  154 
V.  Bollman,  1  Cranch,  C.  C. 

373,  52,  662 

V.  Bolognesi,  104  Fed.  159,  871 
V.  Book,  2  Cranch  (C.  C), 

294,  237 

V.  Booker,  98  Fed.    291,  182 

V.  Booth,  148  Fed.  112, 

773,  774,  778 
V.  Bopp,  230  Fed.  723,  674,  1039 
V.  Bopp,   237  Fed.  283, 

179,  1035,  1277,  1322 
V.  Bordonaro,  253  Fed.  477,       700 

cxiii 


TABLE    OF    CASES 


[Referencea  are  to  sections] 


United  States  v.  Bornemann,  36 

Fed.  257,  748,  752 

V.  Bowers,   5  Wheat.   (U.  S.)    191, 

951 
V.  Boyd,  45  Fed.  851,  934 

V.  Boyer,  85  Fed.  425, 

700,  1288,  1303 
V.  Bozeman,  236  Fed.  432, 

363,  1111 
V.  Brace,  143  Fed.  703,  200,  207 
V.  Brace,  149  Fed.  874, 

1049,  1058,  1191 
V.  Bradford,  148  Fed.  413, 

1035,  1037,  1049 
V.  Braun  &  Fitts,    158  Fed. 

456,  1070 

v.  Breeding,  207  Fed.  645. 

147,  279 
V.  Breese,  131  Fed.  915, 

1149,  1151,1152,  1157,  1159, 
1164,  1169 
V.  Breeze,  173  Fed.  402, 

1030,  1049,  1052 
T.  Breinholm,  208  Fed.  492,  872 
V.  Bressi,  208  Fed.  369,  741 

V.  Brewer,  139  U.  S.  278,  1.57 

T.  Bridleman,  7  Fed.  894,  948 

V.  Briebach,  245  Fed.  204,  66 

V.  Britton,  2  Mason,  464,  809 

V.  Britton,  107  U.  S.  665, 

16,  1039,   1147,    1171,   1172, 
1175 
V.  Britton,  108  U.  S.  199, 

157,    171,    453,    680,    1035, 

1039,    1047,    1049,    1170, 

1171 

V.  Bred,  176  Fed.  165,  326 

V.  Brown,  1  Sawyer,  533,  153 

V.  Brown,  40  Fed.  457, 

333,  427,  1203 
r.  Brown,  119  Fed.  482,  727 

V.  Brown,  224  Fed.  135, 

1092,  1099 
V.  Buchanan,  238  Fed.  877,  697 
V.  Budd,   43  Fed.   6.30,  1191 

V.  Budd,  144  U.  S.  154,  1191 

V.  Bunch,  165  Fed.  736, 

1349,  1355 
V.  Buntin,  10  Fed.  730,  681 

V.  Bunting,  82  Fed.  883, 

689,  10.37 
r.  Burch,  226  Fed.  974,  1105,  1109 
V.  Burke,  221  Fed.  1014,  1038 

V.  Burkctt,   1.'30  Fed.  208, 

1035,  1036,  1042,  1055 
V.  Burley,  14  Blatehf.  91,  7.39 

V.  Burns,  5  McLean,  23  309 

V.  Burr,  2  WhecL  C.  C.  573,         52 
V.  Burr,  4    Cranch   (Appen- 
dix) (U.  S.  C.  C.)  455.         602 

cxiv 


United  States  v.  Burr,  25    Fed. 

Cas.   No.  14693,  662 

V.  Buskey,  38  Fed.  99,  11.33 

V.  Butler,  38  Fed.  498,  237 

V.  Byrne,  44  Fed.  188,  856 

V.  Byron,  223  Fed.  798,  690 

V.  Cadwallader,  59  Fed.  677, 

1135,  1136 
V.  Caldwell,  25  Fed.  Cas.  No. 

238,  47 

V.  Campbell,  16  Fed.  233,  8.'j3 

V.  Campbell,  179  Fed.  762,         1019 
0.  Cardish,  143  Fed.  640, 

946,  947 
V.  Carll,  105  U.  S.  611, 

160,  172,  173,  812,  975 
V.  Carney,  228  Fed.  163, 

1092.  1099 
V.  Carpenter,  151  Fed.  214, 

240,  468,  879 
V.  Carr,  1  Woods.  480,  452,  934 
V.  Carr,  132  U.  S.  644,  317 

V.  Carter,  84  Fed.  622,  950 

V.  Casey,  247  Fed.   362,     306,  807 
V.  Cassidy,  67  Fed.    698, 

862,  1029,  1032.  1035 
V.  Central  Vermont  R.  Co., 

157  Fed.  291,  200 

V.  Certain  Can  Syrup,   192 

Fed.  79,  1082 

V.  Chaires,  40  Fed.  820,  276 

V.  rihakraberty,  244  Fed.  287,     674 
V.  Chaloner,  1  Ware,  214,  841 

V.  Charter,  227  Fed.  331, 

1092,  1093,  1099 
V.  Chase,  27  Fed.  807,  465 

V.  Chase,  135  U.  S.  255,     182,  186 
V.  Chaves,  159  U.  S.  452,  303 

V.  Chennault,  230  Fed.  942,  41 

V.  Chicago,  etc.  R.  Co.,  162 

Fed.  775,  1343 

V.  Chisholm,  153  Fed.  808, 

337,  338,  340 
V.  Chisolm,  149  Fed.  284, 

219,  396,  424 
V.  Chouteau,  102  U.  S.  603,  1058 
V.  Chung  Shee,  71  Fed.  277,  563 
V.  Clapox,  35  Fed.  575,  804 

V.  Clark,  31  Fed.  710,  935 

V.  Clark,  46  Fed.  640         279,  934 
V.  Clark,  121  Fed.  190,  1030 

V.  Clark,   125  Fed.  92,  1043 

V.  Clark,    164    Fed.    75,  1012 

V.  Clark,  200  U.  S.  601,  1191 

'  V.  Claypool,  14  Fed.  127,  862 

V.  Clayton,   2    Dill.    (U.  S.) 

219,  182 

V.  Clement,  171  Fed.  974,  930 

V.  Cleveland,  C.  C.  &  St.  L. 

Co..  234  Fed.  178.  1352 


TABLE    OF   CASES 


[References  are  to  sections] 


United  States  v.  Cobb,  43  Fed.  570,     501 
V.  Cobban,  127  Fed.  713,  153 

V.  Cohn.  128  Fed.  615,  1057 

V.  Cole,  5  McLean,  513,  1050 

V.  Cole,  153  Fed.  801. 

318, 1029, 1030,  1035, 1052 
V.  Colgate,  250  U.  S.  300, 

1271,  1289 
V.  Colgate  &  Co.,    253  Fed. 

522,  1289,  1317 

V.  Collins,  1  Cr.  C.  C.  592,  351 
V.  Collins,  2  Curt.  194,  952 

V.  Collins,  79  Fed.  65,  56 

V.  Collins,  254  Fed.  869,  1426 

V.  Collins,  264  Fed.  380,  1426 

V.  Collyer,     Fed.    Cas.    No. 

14838,  943 

V.  Commanding  Officer,  252 

Fed.  314,  249 

V.  Commerford,  25  Fed.  902,  182 
V.  Comstock,  162  Fed.  415, 

1032,  1049 
V.  Comyns  &  Byron,  249  U. 

S.  349,  1060 

V.  Connally,  1  Fed.  779,  1203 

D.Connors,  111  Fed.  734,  94,  811 
V.  Conrad,  59  Fed.  458,  1041 

V.  Conway  Lumber  Co.,  234 

Fed.  961,  760 

p.  Cook,  17  Wall.  (U.  S.)  168, 

207,  352 
V.  Coombs,    12  Pet.  (U.  S.) 

72,  230,  995 

t).  Cooper,  Fed.  Cas.  No.  14, 

864,  332 

V.  Cooper,  1  Bond,  1,  582 

V.  Cooper,  25  Fed.  Cas.  No. 

626,  47 

V.  Coppersmith,  4  Fed.  198,  280 
V.  Corbett,  162  Fed.  687,  464 

V.  Corbett,  215  U.  S.  233, 

182,  1177 
V.  Corn  Products,  234  Fed. 

964,  1314 

V.  Corrie,  25  Fed.  Cas.  No. 

14869,  908 

V.  Cover,  46  Fed.  284,  1215 

V.  Cowell,  243  Fed.  730, 

1277,  1316,  1318,  1319 
V.  Coyle,  229  Fed.  256,  322,  786 
V.  Craig,  4  Wash.  C.  C.  729.  340 
V.  Crandol,  233  Fed.  331,  786 

r.  Crecelius,  34  Fed.  30,  1172 

V.  Crook,  5  Dill.  453,  549 

V.  Cropley,  4  Cr.  (C.  C.)  517,  452 
V.  Crossen,  264  Fed.  459,  1426 
V.  Cruikshank,  92  U.  S.  542, 

6,    12,  138,    139,    160,    171, 

173,    174,    189,    680,    1041. 

1047 


United  States  v.  Curley,  122  Fed. 

738,  1037 

V.  Curtis,  12  Fed.  824,  779 

V.  Curtis,  116  Fed.  184,  1240 

V.  Curtis,  229  Fed.  288, 

1097.  1099 
V  Dahl,  225  Fed.  909.  1041,  1047 
V.  Dale,    230    Fed.   750,  1063 

V.  D'Arcy,  243    Fed.  739,  1092 

V.  Davidson.    244  Fed.  523, 

872,  873 
V.  Davin,  189  Fed.  244.  1121 

V.  Davis,  2  Sumner,  482.  576 

V.  Davis,  4  Cranch  (C.  C). 

333,  937 

V.  Davis,  103  Fed.  457,  934 

V.  Davis,  231  U.  S.  183,       689,  690 
V.  Davis,  243  U.  S.  570, 

754,  758,  760 
V.  Dawson,  151  How.  (U.  S.) 

467,  35 

V.  De  Bare,  6  Biss.  358,  709 

V.  Debs,  64  Fed.  724,  513,  1291 
V.  Debs,  65   Fed.  210,  862 

V.  De  Groat,  30  Fed.  764,  789 

V.  De  Guirro,  152  Fed.  568,  1191 
V.  Delaware,  L.  &  W.  R.  Co., 

152  Fed.  209,  806,  1354 

V.  Delaware,  L.  &  W.  R.  Co., 

238  U.  S.  516,  1273 

V.  Demarchi,  5  Blatch.  84,  934 
V.  De  Mott,  3  Fed.  478,  862 

V.  Dempsey.  188  Fed.  450,  872 
V.  Denker,     255    Fed.    339, 

1092,  1099 
V.  Dennee,  3  Woods,  47,  1047 
V.  De  Quilfeldt,  5  Fed.  276,  335 
V.  Detroit  Timber  etc.  Co., 

200  U.  S.  321,  1191 

V.  De  Walt,   128  U.  S.  393, 

16,  1133 
V.  Dickinson,2  McLean,  325, 

370,  377,  378,  379 
V.  Dietrich,  126  Fed.  664, 

179,   219,   418,   771,    773, 
775 
V.  Dixon,  1  Cr.  (C.  C.)  414,       452 
V.  Dodge,  251  Fed.  737,      758,  760 
V.  Doe,  127  Fed.  982,  169 

V.  Domengo,  152  Fed.  566.  1191 
V.  Domingos,  193  Fed.  263,  743 
V.  Donaldson-Schultz      Co., 

148  Fed.  581,  1198. 

V.  Donau,    11    Blatch.  168, 

1035,  1041 
V.  Doremus,  249  U.  S.  86,  2.  1092 
V.  Doughten,  186  Fed.  226,  1008 
V.  Douglass,  2  Blatch.  207.  279 
V.  Douglass.  33  Fed.  381.  869 

V.  Dowdell,  8  Fed.  SSI,  1203 

cxv 


TABLE   OP    CASES 


[References  are  to  sections] 


United  States   v.    Downey,    257 

Fed.  364,       696,  1026,  1039,  1042 
V.  Drew,  5  Mason,  2S,  337,  934 

V.  Driggs,  125  Fed.  520, 

771,  773,  774 
V.  Ducournan,  54  Fed.  138,  309 
V.  Du  Faur,  187  Fed.  812,  88 

V.  Duffy,  1  Cr.  C.  C.  164,  333 

V.  Dunfiar,  83  Fed.  151,  67,  84 

V.  Dunkley,  235  Fed.  1000,  1189 
V.  Dunne,  173  Fed.  254,  476,  774 
V.  Dupont,  176  Fed.  823,  741 

V.  Durland,  65  Fed.  408,  341 

V.  Dustin,    2    Bond,    332,  1047 

V.  Dwight  Mfg.  Co.,  210  Fed. 

79,  205 

V.  Eagan,  30  Fed.  608,  277 

V.  Easson,  18  Fed.  590,      842,  847 
V.  Eastern        States        Ret. 
Lumber  Dealers'  Assn., 
201  Fed.  581,  1291 

V.  Eastman,  132  Fed.  551,  1171 

V.  Eastman      Kodak      Co., 
226  Fed.  62, 

1271,  1282,  1310,  1330 
V.  Eaton,  144  U.  S.  677,  157 

V.  Ebbs,  49  Fed.  149,  86 

V.  Eberhardt,   127  Fed.  254, 

6,  680,  930 
V.  Eccles,  181  Fed.  906,  1042, 1055 
V.  Echols,  253  Fed.  862,  349 

V.  Eddy,  134  Fed.  114,  1191 

V.  Edgerton,  80  Fed.  374,     151,  154 
V.  Eighty- Five  Hogsheads  of 
Sugar,  2  Paine  (C.  C), 
54,  1246 

V.  Eighty-seven  Barrels  etc. 
of  Wine,  180  Fed.  215, 

899,  901 
V.  Elbs,  10  Fed.  369,  86 

V.  Elder,  232  Fed.  267,     1069,  1462 
V.  Eleven      Thousand     One 
Hundred       and       Fifty 
Pounds  of  Butter,    195 
Fed.  657,  1455 

V.  Elton,  222  Fed.  428,      322,  1329 
V.  Enrico    Maresco,   decided 
Mar.     1920    (Southern 
Dist.  N.  Y.),  69 

V.  Eqe,  49  Fed.  852,  1134,  1139 
V.  Erie    Railroad    Co.,     222 

Fed.  444,  465,  1352.  1357 

V.  Erie    Railroad     Co.,    235 

U.  S.  513,  845 

V.  Etheredge,  140  Fed.  376,  877 
V.  Evans,  213  U.  S.  297,  570 

V.  Ewing,  47  Fed.    809,  948 

V.  Fabatfi.   253  Fed.    586,  87 

V.  Fairchild.s,  1  Abb.   (U.  S.) 

74,  1203 

cxvi 


United  States  v.  Falkenhainer,  21 

Fed. 624.  855,  856 

V.  Farmer,    218    Fed.    929, 

1039,  1063 
V.  Farnham,  2  Blatch.  528,  943 
V.  Farrar,  139  Fed.  260,  498 

V.  Farrington,  5  Fed.  343, 

153,  154 
V.  Faulkner,     35    Fed.    730, 

337,  396 
V.  Peldman,  247  Fed.  482,  322 

V.  Ferger,  256  Fed.  388,  1,  1241 

V.  Fero,  18  Fed.  901,  806 

V.  Fickett,  205  Fed.  134,  719 

V.  Fifty  Barrels  of  Whiskey, 

165  Fed.  966,  1082 

V.  First  National  Bank,  234 

U.  S.  245,  183 

V.  Fischer,  245  Fed.  477,     374,  392 
V.  Fish,  24  Fed.  585,  1149 

V.  Fisher,  2  Cranch  (U.  S.), 

358,  2,  183 

V.  Fitzgerald,    91   Fed.    374,       811 
V.  Flecke,  2  Ben.  (U.  S.)  456, 

235,  237 
V.  Fleming,  251  Fed.  932,  1097 

V.  Flemming,  18  Fed.  907,         374 
V.  Ford,  .33  Fed.  861,  732 

V.  Ford,  50  Fed.  467,  1440 

V.  Forsyth,  6  McLean,  584, 

750,  755 
V.  Fortv    Barrels,    etc.,   241 

U.  S.  265,  1079 

V.  Forty-six      Packages      of 

Sugar,  183  Fed.  642,  1082 

V.  Foster,  233  U.  S.  515, 

867,  869, 1043 
V.  Four        Hundred        and 
Twenty  Sacks  of  Flour, 
180  Fed.  518,  1073 

V.  Fout,  123  Fed.  625,  690 

V.  Fowkes,  53  Fed.  13, 

94,  97,  100,  101 
V.  Francis,  144  Fed.  520,  1049 
V.  Frank,  189  Fed.  195, 

1074,  1078,  1079 
V.  Franklin,  174  Fed.  161,  6,96 

V.  Freed,  179  Fed.  236,  1185 

V.  Freeman,  3  How.  (U.  S.) 

556,  175 

V.  Freeman,  4  Mason,  505,  934 

V.  Freeman,  239  U.  S.  117,    37,  901 
V.  French,  57  Fed.  382, 

1178,  1179 
V.  French,  117  Fed.  976,  381 

V.  Fricke,  259  Fed.  673,  662 

V.  Friedljorg,  233  Fed.    313, 

104  h,  105,  108,  109 
V.  Friedman,    224  Fed.  276, 

1097,  1099 


TAT3LE    OF   CASES 


[References  are  to  sections] 


United  States  v.  Fries,  3   Dall. 

(U.  S.)  515,  34,  662 

V.  Fuelhart,  106  Fed.  911,  24 

V.  Gaag,  237  Fed.  728,  996 

V.  Gale,  109  U.  S.  71,  146,  148 

V.  Gardner,  42  Fed.  829,  1047 

V.  Gardner,  189  Fed.  690,  989 

V.  Garretson,  42  Fed.  22,  711 

V.  Gates,     Fed.     Gas.     No. 

15191,  1042 

V.  Gehr,   116    Fed.  520,  513 

V.  George,  228  U.  S.  14,  157 

V.  Germaine,  99    U.  S.  508, 

746,  770 
V.  German,  115  Fed.  987,    314,  338 
V.  Gibert,  2  Sumn.  19,  345 

V.  Gibson,  47  Fed.  833,  700 

V.  Gilliam,       1      HajTv.     & 

H. 109,  934 

V.  Giuliani,  147  Fed.  594,  374 

V.  Glasener,  81  Fed.  566,  690 

V.  Gleason,  37  Fed.  331,  397 

V.  Goldberg,     7     Biss.     175, 

1030,  1035 
V.  Goldman,  3  Woods,  187,  1047 
V.  Goldman,  207  Fed.  1002,  1060 
V.  Goldstein's     Sureties,      1 

Dill.  413,  88 

V.  Gonzales,  206  Fed.  239,  934 
V.  Gooding,        12        Wheat. 

(U.  S.)  460, 

172,    216,    313,    318,    672 
V.  Goodwin,  20  Fed.  237,  1203 

V.  Gordon,  22  Fed.  250,  1047 

V.  Gould,  25  Fed.  Gas.  No. 

15239,  907 

V.  Gouled,  253  Fed.  770,  106 

V.  Gradwell,  227  Fed.  243,  279 
V.  Gradwell,  234  Fed.  446,  1013 
V.  Gradwell,   243  U.  S.  476, 

6,  680,  1013,  1023 
V.  Graff,     14    Blatchf.    381, 

328,  333 
V.  Grand  Trunk  Ry.  Co.  of 

Canada,  225  Fed.  283,     1035 
V.  Graner,  155  Fed.  679,  84 

V.  Graves,  53  Fed.  634, 

1133,  1147,  1151,  1172, 
1174,  1177 
V.  Gray,  255  Fed.  98,  1187 

V.  Greathouse,  4  Sawy.  457, 

662,  663,  665 
v.  Greathouse,  166  U.  S.  601,  469 
t.  Great  Lakes  Towing  Co., 

208  Fed.  733,  1272,  1330 

V.  Great   Northern  R.    Co., 

157  Fed.  288,  1346,  1354 

V.  Great    Northern  R.    Co., 

229  Fed.  927,  1343 

V.  Green,  136  Fed.  6l8,     700,   1041 


United  States  v.  Green,  137  Fed. 

179,  1069,  1070 

«.  Greenbaum,  252  Fed.  259,  1185 
V.  Greene,  100  Fed.  941,  97,  100 
V.  Greene,  113  Fed.  683,  279,  308 
V.  Greene,  115  Fed.  343, 

696,  1036,  1039,  1049 
V.  Greene,  146  Fed.  766,  584,  598 
V.  Greene,  146  Fed.  778,  750,  757 
V.  Greene,  146  Fed.  781,  178 

V.  Greene,  146  Fed.  803, 

301,  344,  352,  1055 
V.  Greenhut,  50  Fed.  469,  1317 

V.  Greenhut,  51  Fed.  205, 

1278,  1317 
V.  Greenwald.  64  Fed.  6,  501 

V.  Grimand,  220  U.  S.  506, 

711,  1191 
V.  Grodson,  164  Fed.  157,  1035 

V.  Groff,  Fed.  Gas.  No. 

15244,  416 

V.  Grottkau,  30  Fed.  672,  741 

V.  Gruver,  35  Fed.  59,  856 

V.  Guthrie,  171  Fed.  528,  318,  319 
V.  Gwynne,  209  Fed.  993,  363,  1111 
V.  Haas,  163  Fed.  908,  700,  1015 
V.  Haas,  167  Fed.  211,  784 

V.  Haggarty,  116  Fed.  510,  513 
V.  Hague,  22  Fed.  703,  1203 

V.  Hall,  2  Wash.  (C.  C.)  366,  192 
V.  Hall,   44    Fed.   883,  280 

V.  Hall,  53  Fed.  352,  361 

V.  Hall,  131  U.  S.  50,  689 

I).  Hall,  206  Fed.  484,  309,321,862 
V.  Hamilton,  Fed.  Cas.  No. 

15288,  1033,  1052 

V.  Hamilton,  3  Dallas  (U.  S.), 

17,  77,  79,  529 

V.  Hamilton,  9  Fed.  442,  856 

V.  Hamilton,  157  Fed.  569,  740 
V.  Hammers,   241   Fed.  542, 

309,  1092 
V.  Hampton,  101  Fed.  714,  786 
V.  Hand,  6  McLean,  274,  88,  191 
V.  Hanover,  17  Fed.  444,  872 

V.  Hansee.  79  Fed.  303,  452,  690 
V.  Hanway,      2      Wall.     Jr. 

(C.  C.)  139,  662 

V.  Harden,  10  Fed.  802,  24 

V.  Harmison,  3  Sawy.  (U.  S.) 

556,  467 

V.  Harned,  43  Fed.  376,  746 

V.  Harper,  33  Fed.  474, 

1157,  1160,  1162 
V.  Harris,  106  U.  S.  629,  680 

V.  Harris,    122   Fed.    551,  872 

V.  Harris,  224  Fed.  285,  •     308 

V.  Hart.  74  Fed.  724,  672,  674 

V.  Hart,  78  Fed.  868,  318,  420,  674 
V.  Hart.  146  Fed.  202,  696 

cxvii 


TABLE    OF   CASES 


[References  are  to  sections] 


United  States  v.  Hart,  162  Fed. 

192,  934,  935 

V.  Hartman,  65  Fed.  490,    689,  690 
V.  Hartwell,  6  Wall.  (U.  S.) 

385,  182,  183,  750 

V.  Hartwell,  26  Fed.  Cas.  196,       222 
V.  Hayward,  2    Gall.  485,  1242 

V.  Healey,  160  U.  S.  136,     185,  469 
V.  Healy,  202  Fed.  349,  349 

V.  Heath,     19    Wash.    Law 

Rep.  818,  295 

V.  Heike,  175  Fed.  852,  314 

V.  Heinle  Specialty  Co.,  175 

Fed.  299,  1081 

V.  Heinze,  161  Fed.  425, 

309,  1127,  1166,  1171 
V.  Heinze,  177  Fed.  770,  151,  154 
V.  Heinze,  218  U.  S.  532,  1771 
V.  Hempstead    &    Son,    153 

Fed.  483,  381 

V.  Herrig,  204  Fed.  124, 

1134,  1172,  1177 
V.  Hess,  124  U.  S.  483, 

16,  160,  171,  172,  173,  674, 

877,  1063 

V.  Hewecker,  79  Fed.  59,  935 

V.  Hewitt,  11  Fed.  243,  1203 

V.  Hewson,  Brun.  Col.  Cas. 

532,  934 

V.  Heyburn,  245  Fed.  360,  538 

V.  Hicks,  256  Fed.  707,  1 

V.  Higgins,  194  Fed.  539,  873 

V.  Hilleg;iss,  176  Fed.  444,  1179 

V.  Hillsdale    Distillery    Co., 

242  Fed.  536,  901 

V.  Hinz,  35  Fed.  272,  130 

V.  Hirsch,  100  U.  S.  33, 

204,  730,  1035,  1049 
V.  Hoke,  187  Fed.  992,  1071 

V.  Hollis,  43  Fed.  248,  387 

V.  Hollis,  246  Fed.  611,  1315 

V.  Holmes,  1  Cliff.  98,  369 

V.  Holmes,  5  Wheat.  (U.  S.) 

412,  951 

V.  Holmes,  40  Fed.  750,  856 

V.  Holmes,  104  Fed.  884,  943 

V.  Holte,  236  U.  S.  140, 

1032,  1035,  nil 
V.  Holtzhauer,  40  Fed.  76,  943 

V.  Hongendobler,    218    Fed. 

187,  360 

V.  Hopkins,  199  Fed.  649, 

37,  1074 
v.  Hopkins,  228  Fed.  173,  1074 

V.  Houghton,  14  Fed.  544,  321 

r.  Houston,  4  Cranch  (C.  C),   ■ 

261,  231,235 

V.  Howard,  3  Wash.  340,  968 

V.  Howard,  132  Fed.  325, 

139,  787,  1041 

rxviii 


United  States  v.  Howe,  231  Fed. 

546,  1253 

V.  Howell,  56  Fed.  21, 

1042,  1052,  1054,  1055 
V.  Howell,  64  Fed.  110,  812,  824 
V.  Hoyt,  255  Fed.  927,  1093 

V.  Huckabee,  16  Wall.  (U.  S.) 

414,  680 

V.  Hudson,  1  Hask.  527,  801 

V.  Huff,  13  Fed.  630,  953,  954 

V.  Huff,  206  Fed.  700,  508,  520 

V.  Hughes,  175  Fed.  238,  300 

V.  Hughitt,  45  Fed.  47,  1177 

V.  Huilsman,  94  Fed.  486,  855 

V.  Hung  Chang,  134  Fed.  19,  351 
V.  Hunter,  1  Cr.  C.  C.  317,  326 
V.  Hunter,  15  Fed.  712,  400 

V.  Hyde,  132  Fed.  545,  92 

V.  Hyde,  199  U.  S.  62,  92 

V.  Illinois    Central    R.    Co., 

156   Fed.    182,  1343 

V.  Illinois    Terminal  R.  Co., 

168  Fed.  546,  1346 

V.  Inabnet,  41  Fed.  130,  855 

V.  Ingham,  97  Fed.  935,  700 

V.  Ingraham,  49  Fed.  155,  696 

V.  Insley,  54  Fed.  221,  84 

V.  International      Harvester 

Co.,  214  Fed.  987, 

1291,  1309,  1313 
V.  Irvine,  98  U.  S.  450,  1203 

V.  Isaac  N.  Wood,    decided 

June    11,    1920,    by   U. 

S.  C.  C.  A.  2nd  Cir.,  1464 

V.  Isla  de  Cuba,  2  Cliff.  295,  345 
V.  Jackson,  29  Fed.  503,  352 

V.  Jackson,  143  Fed.  783,  498 

V.  Jacobson,  Brun.  Col.  Cas. 

410,  962 

V.  James,  60  Fed.  257,  114,  326 
V.  Jarvis,  59  Fed.  357,  873 

V.  Jefferson,  134  Fed.  299,  898 

V.  Jenkins,  176  Fed.  672,  87,  474 
V.  Jenks,  258  Fed.  763,  1148 

V.  Jenson,  15  Fed.  1.38,  1203 

V.  Jessup,  15  Fed.  790,  1201,  1203 
V.  Jin  Fuey    Moy,  225  Fed. 

1003,  1099 

V.  Jin  Fuey  Moy,  241  U.  S. 

.394,  1092,  1099 

V.  Jin  Fuey  Moy,  253  Fed. 

213,  1092, 1093 

V.  Johnson,  4  Cin.  Law  Bui. 

.361,  1144 

V.  Johnson,  26  Fed.  682, 

680,  682,  1030 
V.  Johnson,  228  Fed.  251, 

993,  1095 
V.  Johnson  County,  6  Wall. 

(U.  S.)  166,  304 


TABLE    OF   CASES 


[References  are  to  sections] 


United   States   v.    Joint   Traffic 
Ass'n,  171  U.  S.  505. 

1267, 1271,1286,  1307,  1308, 
1314,  1330 
V.  Joles,  251  Fed.  417,  205 

V.  Jolly,  37  Fed.  108,     809,  812,  855 
V.  Jones,  10  Fed.  409,  397 

V.  Jones,  32  Fed.  509,  696 

V.  Jones,  69  Fed.  973,  827 

V.  Jones,  80  Fed.  513,  349 

V.  Jones,  230  Fed.  262,     834,  1061 
V.  Jose,  63  Fed.  951,  512 

V.  Jourdine,  4  Cr.   (C.  C.) 

338,  407 

V.  Journal  Co.  Inc.,  197  Fed. 

415,  872 

V.  Joyce,  138  Fed.  455, 

1438,    1440,    1449 
V.  Kambeitz.  256  Fed.  247, 

182,  708 
V.  Kane,  19  Fed.  42,  862 

V.  Kane,  23  Fed.  748,  1035 

V.  Kansas  City  Southern  R. 

Co.,  202  Fed.  828,  1344 

V.  Karlin,  85  Fed.  963,        92,   100 
V.  Kazinski,   Fed.   Cas.   No. 

15508,  671 

T.  Kee,  39  Fed.  603,  796 

V.  Keen,   26  Fed.   Cas.   No. 

15510,  415 

V.  Keitel,  211  U.  S.  370, 

157,  1008,  1037,  1038,  1191 
V.  Keller,  19  Fed.  633,  434,  943 
V.  Kelly,   11  Wheat.  (U.  S.) 

417,  954 

V.  Kelly,  108  Fed.  538,  801 

V.  Kempf,  171  Fed.  1021,  711 

V.  Kenneally,   26   Fed.   Cas. 

No.  760,  47 

V.  Kennerley,  209  Fed.  119,       872 
V.  Kenney,  90  Fed.  257, 

318,  358,  1152,  1179 
V.  Kenofsky,  243  U.  S.  440, 

1060,  1061 
V.  Kerr,  159  Fed.  185,  65 

V.  Kessel,  62  Fed.  59,  690,  778 

V.  Kessler,  26  Fed.  Cas.  No. 

15528,  967 

V.  Kettenbach,  175  Fed.  463,     1008 
V.  Kettenbach,      208      Fed. 

209,  1191 

V.  Keystone     Watch     Case 
Co.,  218  Fed.  502, 

1271,1276,  1285,  1310, 1311, 
1312,  1313 
V.  Kierman,    3    Cranch    (C. 

C.),435,  937 

V.  Kilpatrick,  16  Fed.  765, 

151,  154^325,392,464, 
465,  798 


United  States  v.   Kimball,   Fed. 

Cas.  No.  15.531,  845 

V.  Kimball,  117  Fed.  156, 

119,  120,  323,  327,  333 
V.  King,  34  Fed.  302, 

318,  337,  340,  9.34,  935 
V.  King,  81  Fed.  025,  950,  989 
V.  King,  229  Fed.  275,  1318,  1321 
V.  King.  250  Fed.  908, 

1316,  13.30,  1339 
V.  Kirby,    7    Wall.    (U.    S.) 

482,  •  182,  862 

V.  Kissel,  173  Fed.  823, 

1025,  1056,  1318 
V.  Kissel,  218  U.  S.  601, 

207,215,1025,  1049,  1293, 
1294,  1331 
V.  Klauder,  240  Fed.  501,  872 

V.  Klein,    13    Wall.    (U.    S.) 

128,  246,  249,  250 

V.  Kline,  201  Fed.  954,  358,  872 
V.  Klintock,    5    Wheat.    (U. 

S.)  144,  951 

V.  Knight  Co.,  156  U.  S.  1, 

1273,    1275,    1302,    1303, 
1304,  1306,  1307 
V.  Knoell,  230  Fed.  509, 

372,  374,  461 
V.  Knott,  151  Fed.  925,  1447 

V.  Knowles,  4  Sawyer,  517  943 
V.  Koch,  21  Fed.  873,  1203 

V.  Komie,  194  Fed.  567, 

234,  871,  879 
V.  Konkapot,  43  Fed.  64,  711 

V.  Koplik,  155  Fed.  919,  696 

V.  Krichman,  256  Fed.  974,  700 

V.  Krsteff,  185  Fed.  201,  37 

V.  Kuentsler,  74  Fed.  220,  690 
V.  Kuhl,  85  Fed.  624,  811 

V.  Kurtz,  4  Cr.  C.  C.  682,  332 

V.  Lacher,  1-34  U.  S.  624,  159,  182 
V.  La  Coste,  2  Mason,  129,  910 

V.  Laescki,  29  Fed.  699,  836 

V.  Lafontaine,  4  Cranch  (C. 

C),  173,  1219 

V.  Lair,  118  Fed.  98,  696 

0.  Lair,  195  Fed.  47,  190,  201 
i>.  Lancaster,  7  Biss.  440,  338 
V.  Lancaster,  44  Fed.   896, 

374,  415,  680,  1050,  1052, 
1056 
V.  Landsberg,  23  Fed.  585,         786 
V.  Lane,  221  Fed.  299,  501 

V.  Lantry,  30  Fed.  232,  853 

V.  La  Plant,  200  Fed.  92,  990 

V.  Larkin,  208  U.  S.  333,  40 

V.  Law,  50  Fed.  915,  787 

V.  Lawson,  173  Fed.  673,  1462 
V.  Lawton,  5  How.    (U.  S.) 

10,  309 


CXIX 


TABLE   OF    CASES 


[References  are  to  sections] 


United  States  v.  Lee,  4  McLean, 

130  103 

V.  Lee,  12  Fed.  816,  1135,  1169 

V.  Lee,  84  Fed.  626,  97,   100 

V.  Lee,  107  Fed.  702,  401,  405 
V.  Lehigh    Valley    R.     Co., 

222  Fed.  685,  1347 

0.  Lehman,  39  Fed.  768, 

737,  738,  741 
V.  Leonard,  2  Fed.  669, 

452,  934,  935 
0.  Lewis,  111  Fed.  630, 

452,  934,  935 
V.  Lewis,  192  Fed.  633,  220,  308 
V.  Lewis,  253  Fed.  469,  933,  989 
V.  Lexington  Mill  &  Elevator 

Co.,  232  U.  S.  399, 

183,  1073,  1079 
V.  Libbv,  26   Fed.  Cas.    No. 

15597,  907 

V.  Linnier,  125  Fed.  83,  452 

V.  Linton,  223  Fed.  677,  1019,  1035 
V.  Lipsett,  156  Fed.  65,  544,  935 
V.  Lissner,  12  Fed.  840,  826 

V.  Lockwood,  164  Fed.  772,  1440 
V.  Loewenthal,  257  Fed.  444, 

1093,  1099 
V.  Logan,  45,  Fed.  872,  680 

V.  Lombardo,  228  Fed.  980,  1120 
V.  Lombardo,  241'!;.  S.  73,  36 

V.  Lonabaugh,  158  Fed.  314, 

1008,  1037 
V.  London,  176  Fed.  976.  220 

V.  Long,   30  Fed.   678,  330 

V.  Long,  184  Fed.  184,  774 

V.  Lophansky,  232  Fed.  297,  855 
V.  Lou  Chu,  214  Fed.  463,  551 
V.  Loughrey,  13  Blatch.  267,  277 
0.  Louis  Lee,  184  Fed.  651,  351 
V.  Louisville   &   N.   R.   Co., 

162  Fed.  185,  1343 

V.  Lowry,  2  Wash.    (C.   C.) 

169,  801 

V.  Lukins,  3  Wash.   (C.  C.) 

335,  801 

V.  Lyman,  190  Fed.  414,  1039 

V.  Lynch,  256  Fed.  983,  1031 

V.  MacAndrews     &     Forbes 

Co.,  149  Fed.  823 

1302,  1310,  1318,  1319, 

1320 

V.  McAvoy,  4  Blatch.  418,         149 

V.  McCarthy,  18  Fed.  87,  122 

V.  McClarty,  191  Fed.  518, 

1035,  1172 
V.  McClcllan,  127  Fed.  971, 

929,  930 
V.  McCord,  72  Fed.  159,  1049 

V.  McCready,  11  Fed.  225,  855 
V.  McCrory,  175  Fed.  802,       1060 

cxx 


United    States  v.    McDonald,  3 

Dill.  (U.  S.)  543,  1247 

V.  McDonald,  8  Bi.ss.  439,  801 

V.  McDonald,  59  Fed.  563,  874 
V.  McEwan,  44  Fed.  594,  726 

V.  McGlue,  1  Curt.  1,  396,  934 

V.  McGurk,  1  Cr.  C.  C.  71,  408 
V.  McHie,  194  Fed.  894,  105,  108 
V.  McKee,  4  Dill.  128,  111 

V.  McKenna,  149  Fed.  252,  898 
V.  McKenzie,  35  Fed.  826, 

318,  336,  420 
V.  McKinney,  199  Fed.  25, 

133,  154 
V.  McKinley,  127  Fed.  166, 

689,  1041 
V.  McLaughlin,      169     Fed. 

302,  1035 

V.  McLeod,  119  Fed.  416,  796 

V.  McMahon,  164  U.  S.  81, 

480,  501 
V.  McMahon,  175  Fed.  296,  729 
V.  Macomber,  5  McLean  (U. 

S.),  285,  73 

V.  Malloy,  31  Fed.  19,  217 

V.  Maloney,   Fed.   Cas.   No. 

15713,  177 

V.  Mann,  95  U.  S.  580,  160,  174 
V.  Mann,  160  Fed.  552,  886 

V.  Manufacturing  Apparatus, 

240  Fed.  235,  237 

V.  Marchant  and  Cokson,  12 

Wheat.  (U.  S.)  481,     180,  283 
V.  Marigold,  9  How.  (U.  S.) 

560,  188 

V.  Marrin,  159  Fed.  767,  464,  465 
V.  Martin,  2  McLean,  256,  318 
V.  Martin,  14  Fed.  817,  801 

V.  Martin,  17  Fed.  150,  801 

V.  Martin,  140  Fed.  256,  853 

V.  Martindale,  146  Fed.  280, 

1169,  1171 
V.  Marx,  122  Fed.  964,  1040 

V.  Mason,  8  Fed.  412,  1203 

V.  Mason,  213  U.  S.  115,  230 

V.  Mason,  218  U.  S.  517, 

708,  750,  752,  757,  758 
V.  Masters,  4  Cr.  C.  C.  479,  367 
V.  Mathews,  23  Fed.  74,  1203 

V.  Mathias,  36  Fed.  892,  397 

V.  Matthews,   26   Fed.   Cas. 

No.  15741  h,  276 

V.  Matthews,  173  U.  S.  381,  30 

V.  Maunier,  1  Hughes,  412,  326 
V.  Maxey,  200  Fed.  997, 

465,  1039,  1040,  1060 
V.  Mayer,  235  U.  S.  55, 

8,  458,  474 
V.  Mayers,  81  Fed.  159,  747 

V.  Mayfield,  69  Fed.  118,  331 


TABLE   OF    CASES 


[References  are  to  sections] 


United  States  v.  Mayfield,    177 

Fed.  765,  1074 

V.  Meagher,  37  Fed.  875, 

452,  934,  935 
V.  Means,  42  Fed.  599,  1174 

V.  Melfi,  118  Fed.  899, 

738,  1039,  1041 
V.    Merchants'    Transporta- 
tion Co.,  187  Fed.  355,       276 
V.  Mescall,  164  Fed.  584,     729,  730 
V.  Metzdorf,  252  Fed.  933, 

7,  172,  682,  1068 
V.  Meyers,  142  Fed.  907,  855 

V.  Michael,  153  Fed.  609,  696 

V.  Miller,  2  Cranch  (C.  C), 

247,  122 

V.  Miller,  223  Fed.  183,  472 

V.  Miller,  236  Fed.  798,  300,  364 
V.  Miller,  249  Fed.  985,  786 

V.  Mills,  185  Fed.  318,  107,  108 
V.  Milner,  36  Fed.  890,  1035,  1047 
V.  Mitchell,  2  Dallas  (U.  S.), 

348,  662 

V.  Mitchell,  141  Fed.  666,  1035 

V.  Mitchell,  163  Fed.  1014,  476 
V.  Molloy,  31  Fed.  19,  397 

v.  Monongahela  Bridge  Co., 

2  Pitts.  Rep.  475,  839 

V.  Moody,  164  Fed.  269,  306 

V.  Moore,  18  Fed.  686,  1203 

T.  Moore,  00  Fed.  738,  690 

V.  Moore,  104  Fed.  78,  872 

V.  Moore,  129  Fed.  159,  872 

V.  Moore,  129  Fed.  630,  680 

V.  Moore,  173  Fed.  122, 

1009,    1012,    1029,    1037, 
1041,  1047 
V.  Morehead,  243  U.  S.  607, 

786,  787,  1008 
V.  Morgan,  222  U.  S.  274, 

48,  56,  154,  1076 
V.  Morris,    Fed.     Cas.     No. 

15812,  1033 

V.  Morris,   1  Curt.  23,  434 

V.  Morris,    14   Pet.    (U.    S.) 

464,  182 

V.  Morris,  et  al.,  125  Fed.  322,  680 
T.  Morrissey,  32  Fed.  147,  304 

V.  Morse,  161  Fed.  429,  1009 

V.  Moses.  4  Wash.    (C.  C) 

726,  402 

T.  Mosley,  238  U.  S.  383,  680 

V.  Motion    Picture    Patents 

Co.,  225  Fed.  800, 

1276,  1288,  1314 
V.  Mounday,  208  Fed.   186, 

105,  114,  1065 
V.  Moy,  241  U.  S.  394,  1092 

V.  Meyers,  15  Fed.  4J1, 

1201,  1203,  1206 


United  States  v.  Mullin,  71  Fed. 

682,  801 

V.  Munday,  186  Fed.  375, 

1029,  1035 
V.  Munday,  222  U.  S.  175,  1008 

V.  Mundell,  1  Hughes,  415,  801 

V.  Munford,  16  Fed.  164,  277 

V.  Murphy,  9  Fed.  26,  697 

V.  Murphy,  16  Pet.   (U.  S.) 

203,  372 

V.  Murphy,  84  Fed.  609,  674 

V.  Murphy,  224  Fed.  554,  147 

V.  Murphy,  253  Fed.  404.  374 

V.  Musgrave,  160  Fed.  700,         872 
V.  Myers,  1  Cranch  (C.  C), 

310,  937 

V.  Nailor,  4  Cr.  C.  C.  372,  407 

V.  Nardello,  4    Mackey  (D. 

C),  503,  279 

V.  Negro      Charles,     2     Cr. 

C.  C.  76,  325,  332,  403 

V.  Negro     John,     4    Cranch 

(CO,  336,  235 

V.  Nelson,  52  Fed.  646,  1316 

V.  Nevin,  199  Fed.  831, 

141,  144,  277 
V.  Newark     Meadows     Im- 

prov.  Co.,  173  Fed.  426,         35 
V.  New  Departure  Mfg.  Co., 
204  Fed.  107, 

1267, 1296, 1318,  1319,  1321 
V.    New  Jersey  Melting,  etc. 

Co.,  141  Fed.  475,  1451 

V.  New  South  Farm  and 
Home  Co.,  241  U.  S. 
64,  1061 

V.  Newton,    48  Fed.  218,  1036 

V.  Newton,  52  Fed.  275, 

415,  1019,  1030,   10.32,  1050. 
1051,  1056 
V.  New     York     Central     & 
H.  R.  R.  Co.,  146  Fed. 
298,  1352 

V.  New    York    Herald   Co., 

159  Fed.  296,  872 

V.  Nicewonger,  20  Fed.  438, 

1201,  1203 
V.  Ninety-nine      Diamonds, 

139  Fed.  901,  175,  469 

V.  Nixon,  235  U.  S.  231,  164 

V.  Noelke,  1  Fed.  426,  342,  351 

V.  Norris,  255  Fed.  423, 

1035,  1318,  1339 
V.  Northway,  120  U.  S.  327, 

1138,  1160,  1161,  1171 
V.  Norton,  188  Fed.  256, 

217,  218,    1135,   1147,   1166 

1174,  1176 

V.  Nott,  1  McLean,  499,  336 

V.  Nunez,  82  Fed.  599,         671,  672 


CXXl 


TABLE    OF    CASES 


[References  are  to  sections] 


United  States  v.  Nunnemacher, 

7  Biss.  Ill,  1029,  1030 

V.  O'Brian,  3  Dill.  D.  C.  381,       352 
V.  O'Brien,  75  Fed.  900, 

G71,  672,  674 
V.  O'Donnell,  1G5  Fed.  218,  872 
V.  O'Hara,  242  Fed.  749, 

1092,  1099,  1100 
V.  One  Blue  Taffeta  Evening 

Coat,  etc.,  237  Fed.  703,     1240 
V.  One  Dark  Bay  Horse,  130 

Fed.  240,  206 

V.  One  Hundred  Barrels  of 

Vinegar,   188  Fed.  471,     1074 
V.  Oppenheimer,  242  U.  S.  85, 

207,  229,  234,  570 
V.  Orr,  223  Fed.  222,  993,  1451 

V.  Orr,  233  Fed.  718, 

993,  1035,  1442 
V.  Ortega,  11  Wheat.  (U.  S.) 

467,  1219 

V.  Ortega,  66  Fed.  713,  1239 

V.  Osgood,  27  Fed.  Cas.  No. 

15971  a,  690 

V.  O'Sullivan,  Fed.  Cas.  No. 

15975,  674 

V.  Otey,  31  Fed.  68,  824 

V.  O'Toole,    236    Fed.    993, 

680,  1013 
v.  Outerbridge,     5     Sawyer, 

620,  934 

V.  Owens,  32  Fed.  534,      201,  1049 
V.  Owens,  37  Fed.  112, 

808,  809,  812 
V.  Pacific  A.  R.  &  Nav.  Co., 

228  U.  S.  87,  170,  1334 

V.  Pacific  Live  Stock  Com- 
pany, 192  Fed.  443,  1070 
V.  Palmer,  3  Wheat.  (U.  S.) 

610,  672,  951 

V.  Patrick,  54  Fed.  338,  680 

V.  Patten,  187  Fed.  664, 

1035,  1317,  1318,  1321, 
1323,  1324 
V.  Patten,  226  U.  S.  525, 

1268,    1281,    1284,    1288, 
1314,  1315,  1325,  1334 
V.  Patterson,  55  Fed.  605, 

171, 1039, 1269,  1298, 1316, 
1318 
V.   Patterson,   59   Fed.   280,     1316 
V.  Patterson,  201  Fed.  697, 

452,     1035,     1267,     1277, 
1314,  1316,  1318,  1321 
V.  Paul,  6  Pot.  (U.    S.)    141,       950 
V.  Payne,  2  McCrary,  289,  711 

V.  Payne,  147  U.  S.  687,  84 

V.  Pears,  3  Woods.  510,  801 

V.  Pocah.an,  143  Fed.  625,  101 

V.  Peeke,  153  Fed.  166,      531,  1058 


United  States  v.  Peggy,  1  Cranch 

(U.  S.),  103,  190,  1004 

V.  Pelican,  232  U.  S.  442,  933,  9.34 
V.  Pena,  69  Fed.  983,  674 

V.  Pendergast,  32  Fed.  198, 

323,  394,  397 
V.      Pennsylvania      Central 

Coal  Co.,  256  Fed.  703,     1035 
V.  Perez,  9  Wheat.   (U.  S.) 

579,  231 

V.  Perkins,  221  Fed.  109,  396,  935 
•>).  Perlman,  247  Fed.  158,  153,  154 
V.  Perot,  98  U.  S.  428,  303 

V.  Peters,  87  Fed.  984,  168,  1172 
V.  Petkos,  214  Fed.  978,  537 

V.  Peuschel,    116   Fed.    642, 

276,  1041 
V.  Philadelphia    &    Reading 

Ry.  Co.,  123  U.  S.  113,         293 
V.  Philadelphia   &    Reading 

Ry  Co.,   184  Fed.  543,     1350 
V.  Philadelphia    &    Reading 

Ry.  Co.,  221  Fed.  683,       152 
V.  Philadelphia    &    Reading 

Ry.  Co.,  225  Fed.  301,       106 
V.  Philadelphia    &    Reading 

Ry.  Co.,  232  Fed.  953,     1353 
V.  Phillips,  196  Fed.  574,  1185 

V.  Piaza,  133  Fed.  998,  588,  598 
V.  Pierce,  245  Fed.  888,  181 

V.  Piowaty  &  Sons,  251  Fed. 

375,  1278, 1317 

V.  Pitts,  112  Fed.  522,  811,  812 

V.  Plyler,  222  U.  S.  15,  689 

V.  Poage,     Fed.     Cas.     No. 

16059,  134 

V.  Pockhngton,  2  Cr.  C.  C. 

293,  326 

V.  Polite,  35  Fed.  58,  48 

V.  Pollak,  230  Fed.  532,  90 

V.  Pomeroy,   Fed.  Cas.    No. 

16005,  845 

V.  Pomeroy,  152  Fed.  279,  224 

V.  Pope,      Fed.      Cas.      No. 

16069,  97 

V.  Portale,  235  U.  S.  27,  1121 

V.  Porter  Fuel  Co.,  247  Fed. 

769,  1191 

V.  Post,  128  Fed.  950,         '  372 

V.  Potter,  56  Fed.  S3, 

1134,  1139,  1175,  1177 
V.  Powell,  151  Fed.  648,  680 

V.  Powell,  212  U.  S.  564,  680 

V.  Praoger,  149  Fed.  474,  313 

V.  Pratt,     Fed.     Cas.     No. 

16082,  872 

V.  Press  Publishing  Co.,  219 

U.  S.  1,  37,  950 

V.  Price,  30    Fed.  Cas.    No. 

16088,  276 


CXXll 


TABLE    OF   CASES 


[References  are  to  sections] 


United  States  v.  Pridgeon,   153 

U.  S.  48,  531 

V.  Prior,  5  Cr.  C.  C.  37,  329,  330 
V.  Provenzano,  171  Fed.  675,  812 
V.  Providence  Tribune  Co., 

241  Fed.  524,  513 

V.  Pumphreys,  1  Cr.  C.  C.  74,  326 
V.  Pupke,  133  Fed.  243,  872 

V.  Quaker     Oats     Co.,     232 

Fed.  499,  1314 

V.  Quan  Wuh,  214  Fed.  462,  551 
V.  Quincy,  6  Peters  (U.  S.), 

445,  672,  678 

V.  Quitman,   Fed.   Cas.   No. 

16111,  677 

V.  Quiver,  241  U.  S.  602, 

977,  989,  990 
V.  Rabinovich,  2.38  U.  S.  78, 

37,  730,  1019,  1026,  1028, 
1035,  1036,  1185,  1190 
V.  Radford,  131  Fed.  378,  458 

V.  Ragazzini,  50  Fed.  923,  737 

V.  Raisch,  144  Fed.  486,  737 

V.  Raley,  173  Fed.  159, 

1029,  1037,  1047 
V.  Ram  Chandra,   254  Fed. 

635  674 

V.  Ramsay,  Hempstead,  481,  934 
V.  Randall,  Deady,  524,  303 

V.  Randenbush,  8  Pet.  (U.  S.) 

288,  234 

V.  Rapp,  30  Fed.  818,  856 

V.  Rauscher,  119  U.  S.  407, 

303,   576,   577,   580,   584, 
585,  586,  952 
V.  Reading  Co.,  —  U.  S. — , 

64  L.  ed.  481,  1288 

r.  Reading  Co.,   226   U.   S. 

324,       1271,  1272,  1281,  1309, 
1314,  1315 
V.  Reardon  &  Sons,  etc.,  191 

Fed.  454,  171,  1316 

V.  Reddin,  193  Fed.  798,  99 

V.     Reed,     Fed.     Cas.     No. 

16134,  154 

V.  Reed,  2  Blatch.  435,  279 

V.  Reed,  86  Fed.  308,  952 

V.  Reese,  4  Sawy.  629,  690 

V.  Reese,  92  U.  S.  214,  182 

V.  Reeves,  3  Woods,  199,  279 

V.  Reeves,  38  Fed.  404,  858 

V.  Reichert,  32  Fed.  142, 

171,  696,  778,  1035,  1040 
V.   Reid,    12    How.    (U.   S.) 

364,  300 

V.  Reid,  210  Fed.  486,  953,  954 

V.  Reinheimer,  233  Fed.  545,  872 
V.  Reisenger,  128  U.  S.  398, 

190,  1004 
V.  Reynolds,  48  Fed.  721,  1203 


United  States  v.   Reynolds,    235 

U.  S.  133,  930 

V.  Rhodes,   30  Fed.  431,  217 

V.  Rhodes,  212  Fed.  513, 

340,  786,  1032,  1185 
V.  Rice,  192  Fed.  720,  89 

V.  Richards,  149  Fed.  443, 

318,  420,  787,  1035,  1045, 
1050 
V.  Richardson,     5     Cranch 

(C.  C),  348,  937 

V.  Richardson,  28  Fed.  61,  276 

V.  Riley,  74  Fed.  210,  779 

V.  Rintelen,  233  Fed.  793, 

1035,    1039,    1277,    1316, 
1318,  1327, 1328 
V.  RispoH,    189    Fed.    271, 

363,  1114 
V.  River    Spinning  Co.,  250 

Fed.  586,  1231 

V.  Robbins,  157  Fed.  999, 

1008,  1038 
V.  Robertson,  257  Fed.  195,  786 
V.  Robinson,   158  Fed.  410,  87 

V.  Robinson,  259  Fed.  685,  662 
V.  Rockefeller,  221  Fed.  462,  141 
V.  Rockefeller,  222  Fed.  534, 

180,  1332 
V.  Rodgers,  150  U.  S.  249,  35 

V.  Rogers,  23  Fed.  658,  100 

V.  Rogers,  46  Fed.  1,  948 

V.  Rogers,  226  Fed.  512, 

993,  1026,  1035,  1042 
r.  Rohe&Bro.,218Fed.  182,  306 
V.  Rose,  6  Fed.  136,  277 

V.  Rose,  92  U.  S.  281,  298 

V.  Rosenberg,  251  Fed.  963, 

1092,  1093 
V.  Rosenblum,  121  Fed.  180,  874 
V.  Rosenstein,  211  Fed.  738, 

1041,  1185 
V.  Rosenthal,  121  Fed.  862, 

151,  154 
V.  Rosenthal,  126  Fed.  706, 

729,  730 
V.  Rosenthal,  174  Fed.  652,  1240 
V.  Ross,  92  U.  S.  281,  317,  318 

V.  Roussopulous,    95    Fed. 

977,  829,  832,  839 

V.  Route,  33  Fed.  246,  696 

V.  Royal  Dutch  West  India 

Mail   250  Fed.  913,  1231 

V.  Royer,  122  Fed.  844,  871,  886 
V.  Rubin,  214  Fed.  507  18,  154 

V.  Rubin,  218  Fed.  245, 

151,  152,  154,  10.39 
V.  Rundlett,  2  Curtis  (U.  S.), 

41,  67 

V.  Ruroede,  220  Fed.  210,  56,  139 
V.  Rush,  196  Fed.  579,  693 

cxxiii 


TABLE   OF   CASES 


[References  are  to  sections] 


United    States  v.   Ryckman,    12 

Fed.  46,  1203 

V.  Sacia,  2  Fed.  754, 

1029,  1030,  1035,  1036, 

1037,  1045,  1054 

V.  Safford,  66  Fed.  942,      855 

V.   St.  John,  254  Fed.  794,    90 

V.  St.    Louis    Coffee    Mills, 

189  Fed.  191,  1074 

V.  St.    Louis,    Southwestern 

R.  Co.,  184  Fed.  28,  1343 

V.  St.  Louis  Terminal  Ass'n, 

224  U.  S.  384,  1314 

V.  Sanche,  7  Fed.  715, 

958,  1035,  1037,  1047 
V.  Sander,  241  Fed.  417,  674 

V.  Sanges,  48  Fed.  78,  680,  797 

V.  Sanges,  144  U.  S.  310,  232,  570 
V.  Sapinkow,  90  Fed.  654,  56 

V.  Sarchet,    Fed.    Cas.    No. 

16224,  437 

V.  Sauer,  73  Fed.  671,  88,  191 

V.  Saul,  58  Fed.  763,  893 

V.  Saunders,  77  Fed.  170,  853 

V.  Schallinger   Produce   Co., 

230  Fed.  290,      60,  1075,  1077 
V.  Schider,  246  U.  S.  519,  1080 

V.  Schindler,  10  Fed.  547,  1203 

V.  Schlatter,  235  Fed.  381,  1063 
V.  Schlierholz,  133  Fed.  333,  746 
V.  Schlierholz,  137  Fed.  616, 

182,  774 
V.  Schooner  Peggy,  1  Cranch 

(U.  S).,  103,  190,  1004 

V.  Schoyer,  2  Blatchf.  59,  733 

V.  Schrader  &  Sons,  decided 
by  Supreme  Ct.  of  U.  S. 
Mar.  1,  1920,  1271,  1289 

V.  Schwartz,  249  Fed.  755,  66,  69 
V.  Scott,  25  Fed.  470,  1203 

V.  Scott,  74  Fed.  213,  779 

V.  Scott,  139  Fed.  697,  1027 

V.  Scott,  2.30  Fed.  192,  279 

V.  Scroggins,  3  Woods  (U.  S.), 

529,  53 

V.  Searcey,  26  Fed.  435, 

315,  317,  344,  347 
V.  Sears,  55  Fed.  268,  862 

V.  Seven  Hundred  Seventy- 
nine  Cases  Molasses, 
174  Fed.  325,  1082 

V.  Seventy-four  Cases  Grape 

Juice,  181  Fed.  029,  1073 

V.  Seventy-five  Barrels  Vine- 
gar, 192  Fed.  350,  1077 
V.  Scvorino,  125  Fed.  949,  741 
c.  Shackelford,       18      How. 

(U.  S.)  588,  276.  280 

V.  Sharp,      Pet.      (C.      C.) 

118,  954 

cxxiv 


United     States    v.     Sheldon,    2 

Wheat.  (U.  S.)  119,  182 

V.  Shelton,  100  Fed.  831,  853 
V.  Shepard,    1  Abb.   (U.    S.) 

431,  98 
V.  Shevlin,     212    Fed.     343, 

993,  1035,  1041,  1240 

V.  Shinn,  14  Fed.  447,  786 
V.  Shipp,  203  U.  S.  563,      507,  508 

V.  Shoemaker,  2  McLean,  114,  231 
V.  Simmons,   96   U.   S.  360, 

160, 1048 

V.  Simon,  248  Fed.  980,  62 

V.  Sing  Tuck,  194  U.  S.  161,  545 
V.  Six     Hundred     Forty-six 

Half-Boxes  of  Figs,  164 

Fed.  778,  1240 
V.   Six    Hundred   and    Fifty 

Cases  Tomato  Catsup, 

166  Fed.  773,  1082 
V.    Six    Lots    of    Ground,    1 

Woods,  234,  402 
V.  Skinner,  2  Wheel.  C.  C. 

232,  52 
V.  Skinner,  218  Fed.  870,  129,  510 
V.  Slaymaker,       4        Wash. 

(C.  C.)  169,  801 
V.  Smith,     Fed.     Cas.     No. 

16326,  416 
V.  Smith,     Fed.     Cas.     No. 

16342  a,  329,  330 

V.  Smith,  1  Dill.  212,  801 

V.  Smith,  2  Bond,  323,  1035 

V.  Smith,  4  Dav,  121,  115  a 
V.  Smith,  5    Wheat.   (U.  S.) 

153,  951 
V.  Smith,  27  Fed.  Cas.  No. 

1192,  47 

V.  Smith,  45  Fed.  561,  877 

V.  Smith,  115  Fed.  423,  903 

V.  Smith,  124  U.  S.  525,  750 
V.  Smith,  152  Fed.  542, 

1142,  1144,1145,1146,1171 

V.  Smith,  156  Fed.  859,  696 

V.  Smith,  163  Fed.  926,  780 

V.  Smith,  217  Fed.  839,  319 

V.  Smull,  236  U.  S.  405,  786 

V.  Snow,  2  Flipp.  1,  1203 
V.  Snyder,  14  Fed.  554,        299,  426 

V.  Somers,  164  Fed.  259,  872 
V.  Southern  Pacific  Co.,  239 

Fed.  998,  1273 

V.  Spraguc,  48  Fed.   828,  812 

V.  Staats,  8  How.  (U.  S.)  41,  689 
V.  Stamatopoulos,   164    Fed. 

524,  1036 
V.  Standard  Oil  Co.,  148  Fed. 

719,  1347,  1350,  1352 
V.  Standard  Oil  Co..  154  Fed. 

728.  92 


TABLE    OF    CASES 


(Referencea  are  to  sections] 


United    States   v.   Standard    Oil 

Co.,  170  Fed.  988,  276 
V.  Standard  Oil  Co.  of  New 
Jersey,  173  Fed.  177, 

1282,  1294 

V.  Starn,  17  Fed.  435,  1203 
V.  St«el      Corporation,     223 
Fed.  55, 

1273,  1282,  1283,  1297 

V.  Steffens,  100  U.  S.  82,  182 
V.  Steinman,   172    Fed.  913, 

1147,  1154,  1169 

V.  Stephen,  12  Fed.  52,  453 

V.  Stephens,  8  Sawy.  116,  453 

V.  Stern,   186  Fed.  854,  1049 

V.  Stevens,  44  Fed.  132,     1039,  1048 

V.  Stevens,  52  Fed.  120,  811 
V.  Stevenson     (No.    2),    215 
U.  S.  200, 

1010,  1026,  1029,  1034 

V.  Stover,  222  U.  S.  167,  1061 
V.  Stewart,  2  Dallas  (U.  S.), 

343,  79 
V.  Stickrath,  242  Fed.  151, 

801,  862,  1068 

V.  Stone,  2  Wall.  (U.  S.)  525,  84 
V.  Stone,  8  Fed.  232, 

149,   312,   327,   328,  329, 
335,  958,  959 

V.  Stone,  135  Fed.  392,     1037,  1041 
V.  Stone,  188  Fed.  836, 

182,  680,  681,  1013,  1041 

V.  Stone,  197  Fed.  483,  1013 

V.  Stowell,  2  Curtis,  153,  801 

V.  Stowell,  133  IT.  S.  1,  182 

V.  Strobach,  48  Fed.  902,  696 

V.  Sugar,  243  Fed.  423,  1042 

V.  Sugarman,  245  Fed.  604,  309 
V.  Sumatra  Purchasing  Co. 

(still  unreported),       257,  1328 

V.  Sutherland,  214  Fed.  320,  41 

V.  Swan,  131  Fed.   140,  690 
V.  Sweet  Valley  Wine  Co., 

208  Fed.  85                1073,  1078 
V.  Swift,  186  Fed.  1002, 

1329.  1336 
V.  Swift,  188  Fed.  92, 

1267,    1270,    1274,  1316, 

1321,  1327 

V.  Sykes,  58  Fed.  1000,  374 

V.  Taffe.  86  Fed.  113,  1039 

V.  Taintor,    11    Blatchf.    (U. 

S.)  374,  1151 

V.  Tallman,   10  Blatch.  21,  279 

V.  Taranto,  74  Fed.  219,  341 

V.  Tauscher,  233  Fed.  597,  674 
V.  Taylor,  11  Fed.  470,       419,  433 

V.  Taylor,  37  Fed.  200,  856 
V.  Tenurck,    5    Cranch    (C. 

C),  562,                  "  439 


United  States  v.  Terry,  39  Fed. 

355,  144,  151,  152 

V.  Terry,   42   Fed.   317,  801 

V.  Thayer,  209  U.  S.  39,  780 

V.  The    Bello    Corrunes,     6 

(U.  S.)  152,  672 

V.  The  Carondelet,  37  Fed. 

799,  672 

V.  The  City  of   Mexico,   24 

Fed.  33,  672 

V.  The   City  of   Mexico,   28 

Fed.  148,  672 

V.  The  City  of   Mexico,   32 

Fed.  105,  672 

V.  The    Conserva,    38    Fed. 

431,  672 

V.  The  Itata,  49  Fed.  646,  672 

V.  The  Itata,  56  Fed.  505,  672 

V.  The    Laurada,     98    Fed. 

983,  672 

V.  The   Lucy   H.,    235   Fed. 

610,  670,  672 

V.  The  Mary  N.  Hogan,  17 

Fed.  813,  672,  677 

V.  The  Mary  N.  Hogan,  18 

Fed.  529,  672 

V.  The  Resolute,  40  Fed.  543,       672 
V.  The     Ship     Garonne,     11 

Pet.    (U.  S.)   73,  909 

V.  The    Three    Friends,    78 

Fed.  175,  672 

V.  The    Three    Friends,    166 

U.  S.  1,  672,  674,  677 

V.  The  Venus,  ISO  Fed.  635,        672 
V.  The  Watchful,  0  Wall.  (U. 

S.)  91,  672 

t).  Thierichers,  243  Fed.  419,      1108 
V.  Thirty-Six       Bottles      of 

London   Dry  Gin,   210 

Fed.  271,  1080 

V.  Thomas,  47  Fed.  807,  796 

V.  Thomas,  69  Fed.  588,  855 

V.  Thomas,  145  Fed.  74, 

1026,  1037 
V.  Thompson,  Fed.  Gas.  No. 

16489,  841,  847 

V.  Thompson,  29  Fed.  86, 

1029,  1035,  1037,  1038 
V.  Thompson,  29  Fed.  706,  856 
V.  Thompson,  31  Fed.  331,  787 

V.  Thompson    (U.    S.    Sup. 

Ct.     decided     Mar.     1, 

1920),  8  a,  131 

V.  Three    Tons    of    Coal,    6 

Biss.  (U.  S.)  379,  114 

V.  Tingey,  5  Pet.  (U.  S.)  115,       307 
V.  Tinkelpaugh,    3    Blatchf. 

425,  801 

I).  Todd,  158  U.  S.  278, 

9,   66,   69,    159,   160,    182 

CXXV 


TABLE   OF  CASES 


[References  are  to  sections] 


United  States  v.   Toledo   News- 
paper Co.,  247  U.  S.  402, 

507,  508,  513,  523 
V.  Torrey    Cedar    Co.,     154 

Fed.  263,  711 

V.  Tosoka,  163  Fed.  129,  1038 

V.  Townsend,  219  Fed.  761, 

35,  952 
V.  Trans.  Mo.  Freight  Ass'n, 

166  U.  S.  290, 

183,     1269,     1286,     1291, 
1.307,  1.308,  1314,  1334 
V.  Travers,     1     Brun.     Col. 

Cas.  467,  934 

V.  Traynor,  173  Fed.  114,  87 

V.  Trice,  30  Fed.  490,  952 

V.  Trosper,  127  Fed.  476, 

855,  856 
V.  Trumbull,  48  Fed.  99,  672,  673 
V.  Tubbs,  94  Fed.  356,  464 

V.  Tucker,  122  Fed.  518,  950 

V.  Tureaud,  20  Fed.  621, 

48,  56,  57,  58 
V.  Twenty      Cases      Grape 

Juice,  189  Fed.  331,  1077 

V.  Two    Barrels    Desiccated 

Eggs,  185  Fed.  302,  1082 

V.  Two     Hundred     eighteen 

and     one-half      Carats 

Loose     Emeralds,     153 

Fed.  643,  1240 

V.  Two    Hundred    Fourteen 

Boxes  of  Arms,  20  Fed. 

50,  672 

0.  Two  Hundred  Sixty-seven 

Twenty-Dollar        Gold 

Pieces,  255  Fed.  217,  1227 

V.  Tynen,   11   Wall.    (U.  S.) 

88,  190,  1004 

V.  Union   Mfg.   Co.,   240  U. 

S.  605,  4,  37 

v.  Union  Pacific  R.  Co.,  226 

U.  S.  61, 

1271,  1286,  1303,  1330 
V.  Union     Stock     Yards     & 

Transit    Co.,     226     U. 

S.  286,  1350 

V.  Union    Supply    Co.,    215 

U.    S.    50, 

170,    182,   1070,   1462 
V.  United  Shoo  Machy.  Co., 

234  Fod.  127,       '      1269,  1339 
V.  United  Shoo  Machy.  Co., 

247   U.   S.   32,  1.333 

V.  United     States     Brewers' 

Ass'n,  239  Fed.   163, 

744,  1035.  1039,  1040 
V.  United     States     Fidelity 

&    Guaranty    Co.,    247 

Fod.  16,  812 


United  States  v.  United  States 
Steel  Corp.,  U.  S.  64  L. 
ed.  222, 

1268,    1269,    1270,  1273, 

1274,    1276,    1277,  1278, 

1282,    1291,    1297,  1299, 

1302,  1314, 1315, 1330 

V.  Vacuum     Oil     Co.,      158 

Fed.  536,  1346, 1350 

V.  Van  Auken,  96  U.  S.  366, 

832,  839 
V.  Van    Duzee,    140    U.    S. 

173,  181 
V.  Van  Leuven,  62  Fed.  69, 

689,  778.  1201,  1203 

V.  Vanraust,  3  Wash.  146,  962 
V.  Van    Schaick,     134    Fed. 

592,  943 

V.  Van  Vliet,  23  Fed.  35,  1203 
V.  Van  Wert,  195  Fed.  974, 

157,  778 
V.  Various  Tugs  and  Scows, 

225  Fed.  505,  35 

V.  Vaughn,  209  Fed.  719,  1107 

V.  Veitch,  1  Cr.  C.  C.  115,  408 
V.  Vigol,    2    Dallas    (U.  S.), 

346  662 
V.  Villato,  2  Dallas  (U.  S.), 

370,  662 
V.  Virginia-Carolina  Chemi- 
cal Co.,  163  Fed.  66,  1316 
V.  Voorhees,  9  Fed.  143,  1147 
V.  Vowell,  5  Cranch  (U.  S.), 

368,  1242 

V.  Waddell,  112  U.  S.  76,  680 

V.  Wah,  160  Fed.  207,  68 

V.  Wallace,  40  Fed.  144,  696 

V.  Wallace,  46  Fed.  569,  475 

V.  Walsh,  5  Dill.  58,  1035 

V.  Walsh,  22  Fed.  644,  741 

V.  Ward,  42  Fed.  320,  939 

V.  Warner,  4  McLean,  463,  943 
V.  Warner,  26  Fed.  616, 

1170,  1171 

V.  Warner,  188  Fed.  682,  1107 

V.  Warren,  26  Fed.  616,  1171 

V.  Watson,  3  Ben.   1,  231 

V.  Watson,   17  Fed.   145,  171 

V.  Watson,  35  Fed.  358,  358 
V.  Watson-Durand      Kasper 

Grocery  Co.,   251   Fed. 

310,                              1073,  1074 

V.  Webb,  240  U.  S.  96,  1092 

D.Weber,   210  Fod.   973,  811 

V.  Webster,  21  Fed.  187,  1203 

V.  Weed,  5  Wall.  (U.  S.)  62,  672 

V.  Weeks,  225  Fod.  1017,  1074 

V.  Welch,   243  Fod.   996,  680 
V.  Wells,  163  Fod.  313,          146,  151 

V.  Wells,  192  Fod.  870,  1008 


CXXVl 


TABLE  OF  CASES 


[References  are  to  sections] 


United  States  v.  Wells,  225  Fed. 

320,  48,  56,  1074 

V.  Welsh,  247  Fed.  239,  106 

V.  Wentworth,  11  Fed.  52,  689 

V.  Werner,  247  Fed.    708,  662 

V.  Weservelt,  28    Fed.    Cas. 

No.  16668,  907,  908 

V.  Westman,  182  Fed.  1017,  1107 
V.  Wetmore,  218  Fed.  227, 

118,  120,  129,  443 
V.  Wheeler,  254  Fed.  611, 

680,  929 
V.  Whelplev,  125  Fed.  616,  898 
V.  White,   2   Wash.    (C.   C.) 

29,  67 

V.  White,  5  Cr.  C.  C.  38, 

352,  364,  369 
V.  White,  19  Fed.  723,  839 

V.  White,  171  Fed.  775,  1240 

V.  Whiting,  212  Fed.  466, 

1301,  1310,  1316 
V.  Whittier,  5  Dill.  35,  349 

V.  Wiborg,  73  Fed.  159,  671 

V.  Wiggins,    14  Pet.    (U.   S.) 

334,  305 

T.  Wilcox,  243  Fed.  993,  680 

V.  WilKams,   1   Cliff.  5  Fed. 

Cas.  No.  16707,  331 

V.  Williams,  1  Dill.  485.  279 

V.  Williams,  3  Fed.  484,  182,  763 
V.  Williams,  4  Biss.  302,  309 

V.  Williams,  14  Fed.  550,  812 

V.  Williamson,  26  Fed.  690,  869 
V.  Williford.  220  Fed.  291,  538 
V.  Wilson,  6  McLean,  604,  322 
V.  Wilson,  7  Pet.  (U.  S.)  150, 

226,  244,  245,  247,  248, 
303,  361 
V.  Wilson,  29  Fed.  286,    1201,  1203 
V.  Wilson,  44  Fed.  751,  810 

V.  Wilson,  46  Fed.  748,  473 

V.  Wilson,  60  Fed.  890, 
V.  Wilson,  176  Fed.  806, 

318,  1147,  1172,  1173,  1174 
V.  Wilson,  225  Fed.  82,  1099 

V.  Wiltberger,  5  Wheat.  (U. 

S.)  76,  157,  175,  182,  662 

V.  Windham,  264  Fed.  376,  1426 
V.  Winslow,  195  Fed.  578, 

1267,  1316,  1321,  1327 
V.  Winslow,  227  U.  S.  202, 

1275,  1289,  1334 
V.  Wittemann,  152  Fed.  377,  205 
V.  Wong    Quong    Wong,    94 

Fed.  832,  120 

V.  Wood,   decided    June    11, 

1920,  by  U.  S.  C.  C.  A. 

2nd  Cir.  1464 

V.  Woods.  4  Cr.  C.  C.  484, 

"  313,  361,  408 


United  States  v.  Woods,  224  Fed. 

278,  996,  1092,  1099,  1100 

V.  Woodward,  2  Hayw.  &  H. 

119,  934 

V.  Wootten,  29  Fed.  702,  1029 

V.  Worcester,  4  Alaska,  2.39,       978 

V.  World's  Columbian  Ex- 
position, 56  Fed.  630,         950 

V.  Wright,  14  Fed.  Cas.  No. 

16770,  204 

I).  Wright,  16  Fed.  112,        313,316 

V.  Wroblenski,  118  Fed.  495,       872 

V.  Wupperman,     215     Fed. 

135,  1035,  1060,  1063 

V.  Wyatt,  122  Fed.  316,  872 

V.  Yarborough,  122  Fed.  293, 

93,  98 

V.  Ybanez,  53  Fed.  536,  374,  674 

V.  Yee  Fing,  222  Fed.  154, 

309,  324 

V.  York,  131  Fed.  323,      737 

V.  Young,  128  Fed.  Ill,     1172 

V.  Young,  215  Fed.  267, 

1060,  1063 

V.  Young,  232  U.  S.  155, 

1060,  1063,  1066 

V.  Young  &  Holland  Co., 

170  Fed.  110,  993 

V.  Youtsev,  91  Fed.  864, 

1149, 1151,  1157,  1165,  1171 

V.  Zarafonitis,  150  Fed.  97,     84 

V.  Zavelo,  177  Fed.  536,       55 

V.  Zucker,  161  U.  S.  475,  76 

United  States,  ex  rel.  Arnowicz 

V.  Williams,  204  Fed.  844,       549 

ex         rel.         Bartalini         v. 

Mitchell,  248  Fed.  997,       538 

ex  rel.  Bosny  v.  Wil- 
liams,  185  Fed.  598,  532 

ex    rel.    Brown    v.    Cooke, 

209  Fed.   607,  534 

ex  rel.  Brown  v.  Com- 
manding Officer,  248 
Fed.  1005,  538 

ex   rel.    Cubyluck    v.    Bell, 

248  Fed.  995,  538 

ex  rel.  D'Amato  v.  Wil- 
liams, 193  Fed.  228,  532 

ex     rel.     Drury     v.     Lewis, 

200  U.S.I,  545 

ex  rel.  Flynn  v.  FuUhart,  106 

Fed.  911,  544 

ex  rel.  Fong  On  v.  Mc- 
Carthy, 228  Fed.  398,      .      528 

ex  rel.  Funaro  v.  Watchorn, 

164  Fed.  152,  549 

ex    rel.    Huber    v.    Sibray, 

178  Fed.    144,  532 

ex       rel.       Koopowitz       v. 

Finley,  245  Fed.  871,  528 

cxxvii 


TABLE  OF  CASES 


[References  are  to  sections] 


United   States,    ex  rel.   Lynn   v. 

Hamilton,  233  Fed.  685,         989 
ex  rel.  McSweeney  v.    Full- 
hart,  47  Fed.  802,  543,  544 
ex  rel.  Marshall  v.  Gordon, 

235  Fed.  422,  530 

ex  rel.    Pleffer  v.   Bell,  248 

Fed.   992,  538 

ex  rel.  Roberts  v.  Jailer,  Fed. 

Cas.   No.   15463,  934 

ex  rel.  Sehleiter  v.  Williams, 

203  Fed.  292,  557 

ex  rel.  Vause  v.   McCarthy, 

250  Fed.  800,  627 

United   States     Steel     Case, 
U.  S.,  64  L.  ed.  222, 

1268, 1269,  1270,  1273, 1274, 
1276,  1277, 1278, 1282,  1291, 
1297,  1299,  1302,  1315,  1330 
United  States  Sugar  Refinery  v. 
E.  P.  Allis  Co.,   56  Fed. 
786,  409 

Urquhart  v.    Brown,    205  U-    S. 

179,  545,  812 

Urzua,  In  re,  188  Fed.  540,  588 

Valdez  v.  United  States,  244  U.  S. 

432,  254,  374 

Valecia  Condensed  Milk  Co.,  In 

re,  240  Fed.  310,  402 

Van   V.    Pacific   Coast   Co.,    120 

Fed.  669,  19 

Van  Campen,  In  re,  2  Ben.  419, 

1143,  1151,  1164,  1173 
Vance  v.  Rankin,  194  111.  625,  190 
Vandalia   R.    R.    Co.   v.    United 

States,  226  Fed.  713,  1349 

Vane  v.  United  States,  254  Fed. 

32,  ■    858,  993 

Van   Gesner   v.    United    States, 

153  Fed.  46, 

360,  1041,  1053,  1191 
Van  Moore,  Ex  parte,  221  Fed. 

954,  545,  933,  990 

Van  Pelt  v.   United  States,  240 

Fed.  346,  1108 

Van   Schaick   v.    United   States, 

159  Fed.  847,  943 

Van  Vranken,  Ex  parte,  47  Fed. 

888,  16 

Vedin  v.  United  States,  257  Fed. 

550,  257 

Veeder    v.    United    States,    240 

U.S.  675,         104  6,108,111,112 
V.  United  States,    252    Fed. 

414,       104  6,108,111,112,113 
Vermont  v.    United   States,    174 

Fed.  792,  1436,  1447 

Vernon    v.    United    States,    140 

Fed.  121,    .33,  318,  .348,  420,  700 

cxxviii 


Vicksburg  &  Meridian  R.  R.  Co. 

V.    Putnam,     118     U.     S. 

545,  294. 436 

Vincendeau   v.   People,    219    III. 

474,  416 

Virginia,  Ex  parte,  100  U.  S.  339, 

279,  529,  680 
Virginia  v.  Paul,   148  U.  S.  119, 

19,  69,  134 
V.  Rives,  100  U.  S.  313,  680 

Vives  V.  United  States,  92  Fed. 

355,  886 

Vogel  V.  Gruaz,  110  U.  S.  311, 

V.  Milwaukee,  47  Wis.  435, 
Von  Arx  v.  Shafer,  241  Fed.  649, 
Von   Bremen   v.    United   States, 

192  Fed.  904, 
Vreitmayer  v.  United  States,  249 

Fed.  929, 
Vujic    V.    Youngstown    Sheet    & 

Tube  Co.,  220  Fed.  390, 


402 

213 

2 

309 

331 


672 


Wade  V.  State,  71  Ind.  535, 
Wadge,  In  re,  15  Fed.  864, 
Waite  V.  Macy,  246  U.  S.  606, 
V.  Press     Publi^iing 
155  Fed.  58, 
Wales  V.  Whitney,  114  U 


441 
589 
7a 

Asso., 

874 
S.  564, 

527,  549 

279 


274 


193 

267 


254 
198 


Walker  v.  Collins,  50  Fed.  737, 
».  New  Mexico  &  S.  P.  R.  R. 

Co.,  165  U.  S.  593, 
V.  Whitehead,        16       Wall. 
(U.  S.)  314, 
Wall,  Ex  parte,  107  U.  S.  265, 
Wall  V.  United  States  Mining  Co., 

232  Fed.  613, 
Wallace  v.  Riswick,  92  U.  S.  202, 
V.  United  States,  162    U.  S. 

466,  353,  452,  935 

V.  United    States,  243    Fed. 

300,  374,  1092,  1099 

Waller  v.  United  States,  179  Fed. 

810,  220,  341 

Walling  V.  Michigan,   116  U.  S. 

446,  5 

Walsh,  In  re,  104  Fed.  518,        123,  129 
Walsh  V.  United  States,  174  Fed. 
615, 

178,  358,  360,  446, 451, 462, 
1147,  1154,  1156,  1170 
V.   United  States,    177  Fed. 

208,  91,  473 

Walters,  In  re,  128  Fed.  791,  498 

Walters  v.   McKinnis,   221   Fed. 

746,  528,  543 

Walton  V.  Walton,  54  N.  .1.  E.  607,  514 
Warden,  The  .T.  S.,  219  Fed.  517,  380 
Warden    v.    United    States,    204 

Fed.  1,  358 


TABLE    OF    CASES 


[References  are  to  sections] 


299 


1074 


286 
425 


213 


1017 
474 


467 


Ware  v.  United  States,  154  Fed. 

577,  1048,  1049 

Warner  v.  Boyer,  74  Fed.  873,  185 

Warren    v.    United    States,    250 

Fed.  89, 
Washburn  &  Co.  v.  United  States, 

224  Fed.  395, 
Washington    v.    Commonwealth, 
86  Va.  405, 
V.  State,  87  Ga.  12, 
Washoe  Cooper  Co.  v.  Hickey, 

46  Montana,  363, 
Waterhouse  v.   Comer,   55  Fed. 

149, 
Waterman,  Ex  parte,  33  Fed.  29, 
Watkins,     Ex     parte,     7     Peter 

(U.S.),  573, 
Watlington  v.  United  States,  233 
Fed.  247, 

310,  322,  412,  1061,  1063 
Watson    V.    Davis,    7    Jones    L. 

(N.  C.)  178,  450  a 

V.  Mercer,  8  Pet.  (U.  S.)  88,       193 
Watts  &  Sachs,  In  re,  190  U.  S.  1, 

523,  532 
Way,  The  Matter  of,  41  Mich. 

299, 
Weaver     v.     Ewers,     195     Fed. 

247, 
Webb  V.  York,  79  Fed.  616, 
Webber  v.  St.  Paul  City  R.  Co., 

97  Fed. 140, 
Webster  D.  Reid,  11  How.  (U.  S.) 

4.37, 
Wechsler  7h   United  States,   158 

Fed.  579, 
Woddel    V.    TTnited    States,    213 

Fed.  208, 
Weed  V.  Lockwood,  decided  May 
26,  1920,  by  U.  S.  C.  C.  A. 
2nd  Cir., 
Weeks,  In  re,  82  Fed.  729, 
Weeks  v.  United  States,  216  Fed. 

292,  48,  56,  62,  137 

V.  United  States,  224  Fed. 

64,  1079 

V.  United  States,  232  U.  S. 

383,     104  b,  105,  108,  874, 1065 
V.  United  States,  242  U.  S. 

383,  109 

Weems    v.    United    States,    217 

U.  S.  349,  137,  271,  446,  467 

Weissengoff  v.  Da^^s,  260  Fed.  16,         26 
Welch,  In  re,  57  Fed.  576,  943 

Welch  V.  State,  104  Ind.  347,  370 

Weldon  v.  Burch,  12  111.  374, 

114  a,  115  a 
Wells,  Ex  parte,  18  How.  (U.  S.) 
307, 

244,  245,  246r247,  250,  361 


25 


1436 
640 


183 


16 


786 


437 


1464 
402 


Welsch  V.  United  States,  220  Fed. 

764,  1114 

Welsing   v.    United    States,    218 

Fed.  369,  856 

Wemyss   v.   Hopkins,   L.    R.    10 

Q.  B.  378,  235 

West!).  Cabell,  153  U.  S.  78,  50 

West,  The  Edward  R.,  212  Fed. 

287,  952 

Western    Union    Teleg.    Co.    v. 

Andrews,  216  U.  S.  165,  7  a 

V.  Baker,  85  Fed.  690,  446 

V.  Baker,  140  Fed.  315,  418 

V.  Chiles,  214  U.  S.  274,  950 

V.  James,  162  U.  S.  650,  1305 

V.  Pendleton,  122  U.  S.  347,     1305 
Westinghouse  El.  &  Mfg.  Co.  v. 

Stanley   Instrument   Co., 

138  Fed.  823,  460 

West  Virginia  v.  Laing,  133  Fed. 

887,  544 

Wetzel  V.  United  States,  233  Fed. 

984,  872 

Wheeler   v.    United   States,    226 

U.  S.  478,  513,  1065 

Whiskey  Cases,  99  U.  S.  594,  130 

Whitaker  v.  Parker,  42  Iowa,  163,       392 

White,  In  re,  45  Fed.  237,  657 

In  re,  55  Fed.  54,  653,  654 

White  V.  People,  32  N.  Y.  465,  416 

V.  State,  52  Miss.  216,  47 

V.  Wong    Quen    Luck,     243 

Fed.  547,  537 

Whitehead  v.  United  States,  245 

Fed.  385,  1060 

Whitfield   v.    Hanges,    222    Fed. 

745,  532 

Whiting   V.    United   States,    263 

Fed.  477,  1426 

Whitney  v.  Dick,  202  U.  S.  132,       526 
V.  Taylor,  158  U.  S.  85,  1216 

Whitten  v.  Tomlinson,  160  U.  S. 

231,  545,  549,  650 

Whitwell  V.  Continental  Tobacco 

Co..  125  Fed.  454,         1289,  1294 
Wiborg    V.    United    States,    163 

U.  S.  632, 

343,  418,  422,  432,  446,  672, 
674,  676,  678,  679,  1054 
Wierse  v.  United  States,  252  Fed. 

435,  211,  212 

Wiggains  v.   United  States,   214 

Fed.  970,  811,  812 

Wiggins  V.  People,  93  U.  S.  465,  353 
Wildberger,  In  re,  214  Fed.  508,  1253 
Wildenhus's  Case,  120  U.  S.  1,  545 

Wilder    v.    United    States,     143 

Fed.  4.33,  796 

Wiley  V.  Sinkler,  179  U.  S.  58,  680 
Wilk,  In  re,  155  Fed.  943,  513 

cxxix 


TABLE  OF  CASES 


[References  are  to  sections] 


Wilkerson  v.   Rahrer,  140  U.   S. 

546,  4 

V.  Utah,  99  U.  S.  130,  467,  984 

Wilkins  v.  United  States,  96  Fed. 

837,  306,  1449 

Williams  Case,  29  Fed.  Cas.  No. 

17708,  670 

Williams  v.   Commonwealth,   34 

Pa.  178,  1034 

V.  Commonwealth,     91     Pa. 

State,  493,  264 

V.  Farrington,  11  Cox  Ch.  R. 

202,  115 o 

J).  Fears,  179  U.  S.  270,  4 

V.  State.  73  Miss.  820,  370 

V.  Thomas,  78  N.  C.  47,  450  a 

V.  United  States,  93  Fed.  396,       283 
V.  United  States,  158  Fed.  30, 

318.  422,  446 
V.  United  States,  168  U.  S. 
382, 

164,    178,    179,   219,   298, 

351,   425,   428,   445,   474. 

746 

v.  United  States,  254  Fed.  52,       427 

V.  United  States,  ex  rel.  Bou- 

gadis,  186  Fed.  479,  740 

j;.  Wells  Fargo   &    Co.   Ex- 
press,  177  Fed.  352, 

841,  842 
Williams  Cooperage  Co.  v.  United 

States,  221  Fed.  234,  710 

Williamson  v.  United  States,  207 
U.  S.  425, 

55,  182,  310,  358,  359.  360, 
680,  1008,  1026,  1036,  1039, 
1041,  1191 
Wilson,  Ex  parte,  114  U.  S.  417, 

16,  137,  204,  811,  812 
Wilson,  In  re,  18  Fed.  33,  204,  809 

In  re,  140  U.  S.  575,  530 

Wilson  V.  New,  243  U.  S.  332, 

7  a,  1209 
V.   United  States,    116  Fed. 

484,  414 

V.  United  States,  149  U.  S. 
60, 

299,   323,  425,  426,  427,  443 
V.  United  States,   102  U.  S. 
613, 

324,  326,  327,  328,  329,  333, 
336,  413 
V.   United  States,   176  Fed. 

800,  455 

V.   United  States,   190  Fed. 
427, 

1040,  1044,  1049,  1000,  1061, 
1063 
V.  United  States,  221  U.  S. 

361,  76,  107,  115,  120,  131 

cxxx 


Wilson  V.  United  States,  229  Fed. 

344,  1099 

V.  United  States,  232  U.  S. 
563, 

4,  313,  389,  441,  453,  1107, 
1108,  1109,  1110 
Winder    v.    Caldwell,    14    How. 

(U.  S.)  434,  84 

Windsor  v.   McVeigh,    93    U.  S. 

274,  16 

Winston   v.    United    States,    172 

U.  S.  303,  452,  408 

Winters   v.    United    States,    201 

Fed.  845,  16,  139,  872 

Winthrop,     In     re,     31     Court 

Claims,  35,  770 

Wise  V.  Henkel,  220  U.  S.  556,  108 

V.  Mills,  220  U.  S.  549,  108 

V.  Withers,  3  Cranch  (U.  S.), 

331,  27 

Withaup  V.   United   States,    127 

Fed.  530.  10.   300.   308,  358 

Witte  V.  Shelton,  240  Fed.  265, 

899,  1035 
Woey  Ho  v.  United    States,  109 

Fed.  888,  370 

Wolf,  In  re,  27  Fed.  606,        1035,  1039 
Wolf  V.  United  States,  238  Fed. 

902,  318,  373, 1185 

Wolfe  V.  Goulard,    15  Abb.  Pr. 

336.  115  a 

Wolfson   V.    United    States,    101 

Fed.  430.  144,  358,  387 

Wong  Din  v.  United  States,  135 

Fed.  702,  1054 

Wong  Goon  Let  v.  United  States, 

245  Fed.  745,  293 

Wong  Wing  v.  United  States,  163 

U.  S.  228,  272,  532 

Wong  Yung  Quy,  In  re,  47  Fed. 

717,  191 

Wood.  In  re.  95  Fed.  288.  97,  100 

Wood    V.    Fitzgerald,    3   Oregon, 

568.  249 

V.  Olson.  117  111.  App.  128,         29 
V.  United     States,     16    Pet. 

(U.  S.)  342,  358,  359 

V.  United    States,    204   Fed. 

55.  162,  180,  219,  996 

Wooding  V.  Oxley,  9  C.  &  P.  1,  25 

Woodruff  V.   United  States,   168 

Fed.  535,  243 

Woods  V.  State,  134  Ind.  35,  112 

Woodward  v.  Bridges,  144  Fed. 

156,  498 

Woo  Hoo^.  White.  243  Fed.  541,       537 
Woolsey    v.   Dodge,    6  McLean, 

142,  191 

Woo  Wai  V.  United  States.  223 

Fed.  412.  349,  1030.  1031 


TABLE    OF    CASES 


(References  are  to  sections] 


Worden    v.    United    States,    204 

Fed.  1,  1053 

Worthington     v.     Scribner,     109 

Mass.  487,  402 

Wright  V.  Henkel,  190  U.  S.  40, 

66,  584,  596,  598,  607 
V.  United   States,    108   Fed. 

805,  431,  680,  682,  1040 

V.  United    States,   227  Fed. 

855,  318 

Wroclawsky    v.    United    States, 

183  Fed.  312,  830 

Wvandott   v.  Kansas   City,  etc. 

Co.,  56  Kansas,  577,  191 

^arborough.  Ex  parte,  110  U.  S. 

651,  191,  528,  680 

Yeates  v.  United  States,  254  Fed. 

60,  1116 

Yea  ton     v.     United     States,     5 

Cranch  (U.  S.),  281,  190 

Yee  Gee,  In  re,  83  Fed.  145,  700 


Yerger,  Ex  parte,  8  Wall.  (U.  S.) 

85,  524,  535 

Yerke  v.  United  States,  173  U.  S. 

439,  183 

Yick  Wo  V.  Hopkins,  118  U.  S. 

356,  5 

Yordi  V.   Nolte,  215  U.   S.  227, 

598,  599,  611 
York  V.  United  States,  224  Fed. 

88,  405 

V.  United    States,    241   Fed. 

656,  426 

Young,  Ex  parte,  50  Fed.  526,       557 
Ex  parte,  209  U.  S.  123,  7  a 

Young  V.  United  States,  97  U.  S. 

39,  249 

Yung  Sing  Hee,  In  re,  36  Fed. 

437,  197 

Zavelo  V.  Reeves,  227  U.  S.  625,     1189 
Zentner,  Ex  parte,  188  Fed.  344, 

687,  598,  600,  604,  607 


CXXXl 


FEDERAL  CRIMINAL  LAW 
AND  PROCEDURE 

VOLUME   ONE 

CHAPTER  I 

POWER   OF   CONGRESS   TO   CREATE   AND   DEFINE   OFFENSES 

AND  PRESCRIBE  THE  JURISDICTION  AND 

PROCEDURE  THEREFOR 

§  1.  Restriction  on  Powers  of  National  Government. 

§  2.  Test  of  Constitutionality  of  an  Act  of  Congress. 

§  3.  The  United  States  Cannot  Exercise  Police  Powers  within  a  State. 

§  4.  Definition  of  Police  Power. 

§  5.  The  Exercise  of  Police  Power  Must  Not  Transgress  Fundamental  Rights 

under  the  Constitution  of  the  United  States. 

§  6.  The  Dividing  Line. 

§  7.  Effect  of  Unconstitutionality  of  Part  of  an  Act. 

§  7  o.  Enjoining  Criminal  Prosecutions  under  Unconstitutional  Statutes. 

§  1.   Restriction  on  Powers  of  National  Government. 

The  Government  of  the  United  States  is  one  of  delegated, 
limited  and  enumerated  powers.^  Therefore,  every  Act  of  Con- 
gress must  find  in  the  Constitution  of  the  United  States  some 
warrant  for  its  passage.  This  is  manifest  from  an  inspection  of 
the  following  provisions:  Section  1  of  the  first  Article  declares 
that  all  legislative  powers  granted  by  the  Constitution  shall  be 
vested  in  the  Congress  of  the  United  States.  Section  8  of  the 
same  Article  enumerates  the  powers  granted  to  Congress  and 
concludes  the  enumeration  with  a  grant  of  power  "  To  make 

§1.    1  Hammer  v.  Dagenhart,  247  WTieat.  316,  4  L.  ed.  579;    Gibbons 

U.  S.  251,  62  L.  ed.  110,  38  S.  C.  v.  Ogden,  9  Wheat.  1,  6  L.  ed.  23; 

529;    Keller  v.   United  States,   213  United   States   v.   Ferger,   256   Fed. 

U.  S.  138,  53  L.  ed.  737,  29  S.  C.  388;     United   States  v.   Hicks,   256 

470;     M'Culloch    v.    Maryland,    4  Fed.  707. 

VOL.  I 1  1 


§  1]  POWER  OF  CONGRESS  [Chap.  I 

all  Laws  which  shall  be  necessary  and  proper  to  carry  into  Execu- 
tion the  foregoing  Powers,  and  all  other  Powers  vested  by  this 
Constitution  in  the  Government  of  the  United  States  or  in  any 
Department  or  Officer  thereof."  The  Tenth  Amendment  to  the 
Constitution  declares  that  "  The  powers  not  delegated  to  the 
United  States  by  the  Constitution,  nor  prohibited  by  it  to  the 
States,  are  reserved  to  the  States  respectively,  or  to  the  people." 

§  2.   Test  of  Constitutionality  of  an  Act  of  Congress. 

The  Constitution  is  the  supreme,  permanent  and  fixed  will  of 
the  people  in  their  original,  unlimited  and  sovereign  capacity. 
Whenever,  therefore,  a  question  arises  concerning  the  constitu- 
tionality of  a  particular  power,  the  first  question  is,  whether  the 
power  is  expressed  in  the  Constitution.  If  it  be,  the  question, 
of  course,  is  foreclosed.  If  not  expressed,  the  next  inquiry  must 
be,  whether  the  act  of  Congress  is  properly  an  incident  to  an 
express  power  and  necessary  to  its  execution.  Where  Congress 
is  by  the  Constitution  clothed  with  direct  and  plenary  powers  of 
legislation  over  the  whole  subject,  accompanied  with  an  express 
or  implied  denial  of  such  powers  to  the  States,  as  in  levying  taxes,^ 
the  regulation  of  commerce  in  interstate  and  with  foreign  nations, 
and  with  the  Indian  Tribes,  the  coining  of  money,  the  establish- 
ment of  post  offices  and  post  roads,  the  declaring  of  war,  etc.. 
Congress  has  power  to  pass  laws  for  the  regulation  of  the  sub- 
jects specified  and  to  provide  punishments  for  the  violation  of 
such  laws  and  regulations.^  In  United  States  v.  Fisher,^  the 
court  said  that  "  Congress  must  possess  the  choice  of  means, 
and  must  be  empowered  to  use  any  means  which  are  in  fact  con- 
ducive to  the  exercise  of  a  power  granted  by  the  Constitution." 
"  The  sound  construction  of  the  Constitution,"  said  Chief  Justice 
Marshall,^  "  must  allow  to  the  National  Legislature  that  dis- 
cretion, with  respect  to  the  means  by  which  the  powers  it  confers 
are  to  be  carried  into  execution,  which  will  enable  that  body  to 
perform  the  high  duties  assigned  to  it  in  the  manner  most  bene- 

§  2.   1  United  States  v.  Doremus,  States  v.  Arjona,  120  U.  S.  479,  30 

249  U.  S.  86.  L.  ed.  728,  7  S.  C.  628. 

»  Clark  Distilling  Co.  v.  Western  '  2  Cranch  (U.S.) ,  358, 2  L.  ed.  304. 

Maryland  Ry.  Co.,  242  U.  S.  311,  ^  M'Culloch?;.  Maryland,  4  Wheat. 

61  L.  ed.  326,  37  S.  C.  180;   United  316,  421,  4  L.  ed.  579,  605. 

2 


Chap.  I]  DEFINITION    OF   POLICE    POWER  [§  4 

ficial  to  the  people.  Let  the  end  be  legitimate,  let  it  be  within 
the  scope  of  the  Constitution,  and  all  means  which  are  appro- 
priate, which  are  plainly  adapted  to  that  end,  which  are  not 
prohibited,  but  consistent  with  the  letter  and  spirit  of  the  Con- 
stitution, are  constitutional."  And  an  act  will  not  be  declared 
unconstitutional  because  its  effects  may  be  to  accomplish  another 
purpose  as  well  as  the  one  for  which  it  was  expressly  passed.^ 

§  3.  The  United  States  Cannot  Exercise  Police  Powers  within 
a  State. 

Offenses  which  come  within  the  accepted  definition  of  police 
power  are  reserved  to  the  several  States,  for  there  is  in  the  Con- 
stitution no  grant  thereof  to  Congress.^ 

§  4.   Definition  of  Police  Power. 

There  is  no  exact  definition  of  the  term  "  police  power  ",  but 
whatever  differences  of  opinion  may  exist  as  to  the  extent  and 
boundaries  of  police  power,  and  however  difficult  it  may  be  to 
render  a  satisfactory  definition  of  it,  there  seems  to  be  no  doubt 
that  it  does  extend  to  the  protection  of  the  lives,  health  and 
property  of  the  citizens  and  to  the  preservation  of  good  order 
and  public  morals.  It  belongs  unquestionably  to  that  class  of 
objects  which  demand  the  maxim,  salus  populi  suprenia  lex} 
Within  its  own  boundaries,  the  State  has  the  exclusive  power 
to  regulate,  restrain  and  prohibit  under  penalty  vice  and  im- 
morality and  to  enact  legislation  in  furtherance  thereof.^    There 

5  In   re    KoUok,    165    U.   S.   526,  Co.  v.  Massachusetts,  97  U.  S.  25, 

41  L.  ed.  813,  17  S.  C.  444;   United  24  L.  ed.  989. 

States   V.    Doremus,    249   U.    S.    86,  2  Keller    v.    United    States,    213 

63  L.  ed.  286,  39  S.  C.  217.  U.  S.  138,  53  L.  ed.  737,  29  S.  C. 

§  3.   1  Patterson  v.  Kentucky,  97  470 ;     License    Cases,    5    How.    504, 

U.  S.  501,  24  L.  ed.  1115;    Savage  582,  12  L.  ed.  256,  291;    Patterson 

V.  Jones,  225  U.  S.  501,  56  L.  ed.  v.  Kentucky,  97  U.  S.  501,  24  L.  ed. 

1182,  32  S.  C.  715;    License  Cases,  1115;     Slaughter    House    Cases,    16 

5  How.  504,  12  L.  ed.  256;    KeUer  WaU.   36,   64,   21   L.   ed.   394,   404; 

V.  United  States,  213  U.  S.  138,  53  Re:    Rahrer  (Wilkerson  t-.  Rahrer), 

L.  ed.  737,  29  S.  C.  470 ;    Hammer  140  U.  S.  546,  555,  35  L.  ed.  572,  574, 

V.  Dagenhart,  247  U.  S.  251,  62  L.  11  S.   C.  865;    Trade  Mark  Cases, 

ed.  1104,  38  S.  C.  529.  100  U.  S.  82,  96,  25  L.  ed.  550,  552; 

§  4.   1  Corn  Products  Refining  Co.  Williams  v.  Fears,  179  U.  S.  270,  45 

V.  Eddy,  et  ah,  249  U.  S".  427,  —  L.  L.  ed.  186,  21  S.  C.  128. 
ed.  — ,  —  S.  C.  — ;   Boston  Beer 


§  4]  POWER  OF  CONGRESS  .       [Chap.  I 

is  a  dictum  in  Wilson  v.  United  States,^  to  the  effect  that  the 
United  States  possesses  to  some  extent  police  powers  within  a 
State  when  exercising  its  powers  over  interstate  commerce,  but 
what  was  said  must  be  limited  to  the  facts  in  that  particular  case 
and  it  should  not  be  construed  as  the  announcement  of  a  new 
principle  of  law.^  It  is  established  by  repeated  decisions  that 
neither  of  these  provisions  of  the  Federal  Constitution  has  the 
elTect  of  overriding  the  power  of  the  State  to  establish  all  regula- 
tions reasonably  necessary  to  secure  the  health,  safety,  or  general 
welfare  of  the  community;  that  this  power  can  neither  be  ab- 
dicated nor  bargained  away,  and  is  inalienable  even  by  express 
grant ;  and  that  all  contract  and  property  rights  are  held  subject 
to  its  fair  exercise.^  And  it  is  also  settled  that  the  police  power 
embraces  regulations  designed  to  promote  the  public  convenience 
or  the  general  welfare  and  prosperity,  as  well  as  those  in  the 
interest  of  the  public  health,  morals,  or  safety.®  The  courts  may 
not  concern  themselves  with  the  policy  of  legislation,  or  its  eco- 
nomic wisdom,  or  folly.  Those  are  considerations  belonging 
exclusively  to  the  Legislature.'^ 

§  5.  The  Exercise  of  Police  Power  Must  Not  Transgress  Funda- 
mental Rights  under  the  Constitution  of  the  United  States. 

In  this  connection  it  must  be  also  remembered  that  the  state 
when  providing,  by  legislation,  for  the  protection  of  the  public 
health,  the  public  morals,  or  the  public  safety,  is  subject  to  the 
paramount  authority  of  the  Constitution  of  the  United  States, 

3  232   U.   S.   563,  567,  58  L.  ed.  173  U.  S.  285,  292,  43  L.  ed.  702,  704, 

728,  34  S.  C.  347.  19  S.  C.  465 ;  Chicago  B.  &  Q.  R.  Co. 

*  United  States  v.  Union  Mfg.  Co.,  v.  Illinois,  200  U.  S.  561,  592,  50  L. 
240  U.  S.  605,  60  L.  ed.  822.  ed.  596,  609,  26  S.  C.  341 ;   Bacon  v. 

6  Chicago  &  Alton  Railroad  Com-  Walker,  204  U.  S.  311,  317,  51  L.  ed. 

pany  v.   Tranbarger,   238  U.  S.  67,  499,  502,  27  S.  C.  289. 

77  ;    59  L.  ed.   1204 ;   35  S.  C.  678 ;  ^  C.  B.  &  Q.  Ry.  Co.  v.  McGuire, 

Atlantic  Coast  Line  R.  Co.  v.  Golds-  219  U.  S.  549,  569,  55  L.  ed.  328, 

boro,  232  U.  S.  548,  558,  58  L.  ed.  31  S.  C.  259;    Price  v.  Illinois,  238 

721,  726,  34  S.  C.   304,   and  cases  U.  S.  446,  451,  452,  59  L.  ed.  1400, 

cited.  35  S.  C.  892  ;   Rast  v.  Van  Deman  & 

•  Chicago  &  Alton  Railroad  Com-  Lewis,  240  U.  S.  342,  357,  60  L.  ed. 
pany  v.  Tranbarger,  238  U.  S.  67,  679,  36  S.  C.  370 ;  Merrick  v.  Halsey, 
77,  59  L.  cd.  1204,  35  S.  C.  678;  242  U.  S.  568,  586,  588,  61  L.  ed. 
Lake  Shore  &  M.  S.  R.  Co.  v.  Ohio,  498,  37  S.  C.  227. 

4 


Chap.  I]  THE   DIVIDING   LINE  [§  6 

and  may  not  violate  rights  secured  or  guaranteed  by  that  instru- 
ment, or  interfere  with  the  execution  of  the  powers  confided  to 
the  general  government/  but,  unless  the  legislation  is  palpably 
unreasonable  and  arbitrary,  it  will  ordinarily  not  be  disturbed.^ 

§  6.   The  Dividing  Line. 

The  principles  stated  in  the  preceding  sections  briefly  sum  up 
the  law  as  to  the  respective  powers  and  obligations  of  the  States 
and  nation.  The  very  nature  of  the  Constitution,  as  observed 
by  Chief  Justice  Marshall,  "  requires  that  only  its  great  outlines 
should  be  marked,  its  important  objects  designated,  and  the 
minor  ingredients  which  compose  those  objects  be  deduced  from 
the  nature  of  the  objects  themselves.  .  .  ."  ^  Both  the  State 
and  Federal  Governments  have  maintained  their  sovereign  rights 
and  will  continue  to  do  so  as  long  as  the  Union  exists.  Federal 
statutes  are  upheld  when  they  are  within  the  power  of  Congress 
and  are  often  held  unconstitutional  if  they  invade  the  rights  of 
the  several  States.  As  was  said  in  Houston  v.  Moore :  ^  "  Nor 
ought  any  power  to  be  sought,  much  less  to  be  adjudged,  in  favor 
of  the  United  States,  unless  it  be  clearly  within  the  reach  of  its 
constitutional  charter.  Sitting  here,  we  are  not  at  liberty  to  add 
one  jot  of  power  to  the  national  government  beyond  what  the 
people  have  granted  by  the  Constitution."  ^  And  generally 
speaking  the  citizen's  right  to  personal  liberty  and  security  within 
a  State  is  primarily  within  the  jurisdiction  of  the  State.^ 

§  5.    1  Mugler  v.  Kansas,  123  U.  S.  rights  cannot  be  destroyed  by  arbi- 

623,  31  L.  ed.  205,  8  S.  C.  273 ;  Hanni-  trary  enactment. 
bal  &  St.  Joseph  R.  R.  Co.  v.  Husen,  ^  Price  v.  IlHnois,  238  U.  S.  446, 

95  U.  S.  465,  24  L.  ed.  527;    New  59  L.  ed.  1400,  35  S.  C.  892. 
Orleans  Gas  Co.  v.  Louisiana  Light  §  6.   '  M'CuUoch  v.   Maryland,   4 

Co.,  115  U.  S.  650,  29  L.  ed.  516,  6  Wheat.  316,  407,  4  L.  ed.  579,  601. 
S.  C.  252;   WaUing  v.  Michigan,  116  ^  5  Wheat.  1,  48,  5  L.  ed.  19. 

U.  S.  446,  29L.  ed.  691,  6S.  C.  454;  'Approved    in    KeUer   v.    United 

Yick  Wo  V.  Hopkins,  118  U.  S.  356,  States,  supra. 

30  L.  ed.  220,  6  S.  C.  1064 ;  Morgan's  *  United  States  v.  Eberhardt,  127 

Louisiana,    etc..    Steamship    Co.    v.  Fed.     254;      Boston     Beer     Co.     v. 

Board   of   Health,    118   U.    S.    455,  Massachusetts,    97  U.  S.  25,  24  L. 

30  L.  ed.  237,  6  S.  C.  1114;  Dobbins  ed.  989;    Munn  v.  IlUnois,   94  U.  S. 

V.  Los  Angeles,  195  U.  S.  223,  241,  49  113,  24  L.  ed.  77;  United  States  v. 

L.  ed.  169,  25  S.  C.  18,  holding  that  Bathgate,  246  U.  S.  220,   62  L.  ed. 

the  exercise  of  poUce  pdwer  is  subject  676,  38  S.  C.  269  ;  United  States  v. 

to  judicial  review  and  that  property  Gradwell,  243  U.   S.   476,  61  L.  ed. 

s 


§  7]  POWER   OF   CONGRESS  [Chap.  I 

§  7.   Effect  of  Unconstitutionality  of  Part  of  an  Act. 

It  is  now  well  settled  that  an  Act  of  Congress  may  be  in  part 
constitutional  and  in  part  unconstitutional  and  if  the  parts  of 
the  statute  are  wholly  independent  of  each  other,  that  which  is 
constitutional  may  stand  while  that  which  is  unconstitutional 
will  be  rejected.  On  the  other  hand,  if  the  different  parts  of  a 
statute  are  so  mutually  connected  with  and  dependent  on  each 
other,  as  conditions,  considerations,  or  compensations  for  each 
other,  as  to  warrant  a  belief  that  Congress  intended  to  pass  the 
Act  as  a  whole,  and  that,  if  all  could  not  be  carried  into  effect, 
it  would  not  have  passed  the  residue  independently,  and  it  is 
found  that  some  parts  of  same  are  unconstitutional,  all  the  provi- 
sions which  are  thus  dependent,  conditional  or  connected,  must 
fall  with  them.^  Where,  however,  a  statute  is  susceptible  of  two 
constructions,  one  within  the  power  of  Congress  and  the  other 
not,  the  former  will  be  adopted.^ 

§  7  a.  Enjoining  Criminal  Prosecutions  under  Unconstitutional 
Statutes. 

It  has  been  held  ^  by  the  United  States  Circuit  Court  of  Appeals 
for  the  Second  Circuit,  that  a  United  States  Attorney  cannot  be 
enjoined  from  instituting  criminal  proceedings  under  a  valid  act  of 
Congress.  Prior  to  this  decision  the  Supreme  Court  of  the  United 
States  by  divided  Court  sustained  a  decree  enjoining  the  United 
States  Attorney  for  the  Western  District  of  North  Carolina  from 
prosecuting  by  indictment  or  information  and  enforcing  an  Act 
of  Congress  prohibiting  the  shipment  of  articles  produced  in 
establishments  where  children  under  a  certain  age  were  employed 
on  the  ground  that  the  statute  was  unconstitutional.-  Jurisdic- 
tion in  equity  was  also  entertained  ^  in  a  suit  for  injunction  against 

857,  37  S.  C.  407 ;  United  States  v.  2  United  States  v.    Metzdorf ,  252 

Cruikshank,  92  U.  S.  542,  23  L.  ed.  Fed.  933. 

688.  §  7  a.    1  Jacob    Hoffman    Brewing 

§  7.   '  Poindextcr     v.      Grecnhow,  Company    v.    McElligott,    259    Fed. 

114  U.  S.  270,  304,  29  L.  ed.    185,  525  (C.  C.  A.  2d  Cir.). 
197,  5  S.  C.  903  ;  Spraigue  v.  Thomp-  «  Hammer  v.   United  States,   247 

son,  118  U.  S.  90,  95,  30  L.  ed.  115,  U.  S.  251,  G2  L.  ed.  1101,  38  S.  C. 

117,  6  S.  C.  988;    Pollock  r.  Farmers  529. 

Loan  &  Trust  Co.,  158  U.    S.  601,  'Wilson  v.  New,  243  U.  S.  332, 

39  L.  ed.  1108,  15  S.  C.  912.  61  L.  ed.  755,  37  S.  C.  298. 

6 


Chap.  I]  ENJOINING    CRIMINAL    PROSECUTIONS  [§  7  a 

the  United  States  Attorney  for  the  Western  District  of  Missouri 
to  restrain  the  enforcement  of  an  Act  of  Congress  estabHshing  an 
eight-hour  day  for  employees  engaged  in  interstate  and  foreign 
commerce  and  providing  a  punishment  for  the  violation  of  said 
Act.  A  bill  in  equity  framed  upon  the  theory  that  an  act  is 
unconstitutional,  and  that  the  defendants,  who  are  public  officers 
concerned  with  the  enforcement  of  the  laws  of  the  State,  are  about 
to  proceed  wrongfully  to  the  complainant's  injury  through  inter- 
ference with  his  employment,  cannot  be  regarded  as  one  against 
the  State.^  It  is  also  settled  that  while  a  court  of  equity,  generally 
speaking,  has  "  no  jurisdiction  over  the  prosecution,  the  punish- 
ment, or  the  pardon  of  crimes  or  misdemeanors  "  ^  a  distinction 
obtains  and  equitable  jurisdiction  exists  to  restrain  criminal 
prosecutions  under  unconstitutional  enactments,  when  the  pre- 
vention of  such  prosecutions  is  essential  to  the  safeguarding  of 
rights  of  property.^  Likewise  an  injunction  will  be  granted 
against  the  administrative  officers  of  the  Government  to  restrain 
the  enforcement  of  a  rule  promulgated  by  a  superior  officer  which 
was  beyond  the  power  of  such  superior  officer  to  make.^  But 
it  has  been  held  that  a  suit  in  equity  will  not  lie  to  restrain  the 
enforcement  of  a  criminal  statute  which  is  constitutional  but 
which  it  is  claimed  has  been  wrongfully  interpreted  and  applied 
in  a  particular  case.^     Where  proceedings  under  an  unconstitu- 

^Griesedieck   Bros.    Brewery   Co.  33  S.  C.  312;    Truax  v.  Raich,  239 

V.  Moore,  262  Fed.  582;    Ex  parte  U.  S.  33,  60  L.  ed.  131. 
Young,  209  U.  S.  123,  155,  161,  52  L.  «  Rg  Sawyer,  124  U.  S.  200,  210, 

ed.  714,  727,  729,  28  S.  C.  441.     Fol-  31  L.  ed.  402,  405,  8  S.  C.  482. 
loived  by  Ludwig  v.  Western  Union  *  Davis    &    F.    Mfg.    Co.    v.    Los 

Teleg.  Co.,  216  U.  S.  146,  54  L.  ed.  Angeles,   189  U.  S.  207,  218,  47  L. 

423,  30  S.  C.  280 ;    Western  Union  ed   778,  780,  23  S.  C.  498 ;   Dobbins 

Teleg.    Co.   v.   Andrews,    216   U.    S.  v.  Los  Angeles,  195  U.  S.  223,  241, 

165,  54  L.  ed.  430,  30  S.  C.  286  j  49  L.  ed.  169,  177,  25  S.  C.  18;   Ex 

Herndon  t).  Chicago  R.  I.  &  P.  R.  Co.,  parte  Young,    209   U.   S.    123,    155, 

218  U.  S.   135,   155,  54  L.  ed.  970,  161,  52  L.  ed.  714,  727,  729,  28  S.  C. 

976,  30  S.  C.  633 ;   Hopkins  v.  Clem-  441 ;     Philadelphia   Co.   v.   Stimson, 

son  Agri.  College,  221  U.  S.  636,  643,  223  U.  S.  621,  56  L.  ed.  577,  32  S.  C. 

645,  55  L.  ed.  890,  894,  895,  31  S.  C.  340. 

654;    Philadelphia  Co.   v.   Stimson,  "^aite  v.  Macy,  246  U.  S.  606, 

223  U.  S.  607,  620,  56  L.  ed.  572,  610,  62  L.  ed.  892. 
576,  32  S.  C.  340;    Home  Teleph.  » Jacob  Hoffman  Brewing  Co.  v. 

&  Teleg.   Co.   v.   L09  Angeles,   227  M'EUigott,  259  Fed.  525  (C.  C.  A. 

V.  S.  278,  293,  57  L.  ed.  510,  517,  2d  Cir.). 

7 


§  7  a]  POWER   OF  CONGRESS  [Chap.  I 

tional  enactment  are  enjoined,  the  suit  is  not  construed  as  one 
against  the  State. ^  An  action  does  not  usually  lie  against  an 
officer  of  the  United  States,  acting  in  the  exercise  of  his  office,^" 
unless  he  exceeds  the  authority  conferred  by  statute.^^  When 
an  indictment  or  proceeding  is  brought  to  enforce  an  alleged 
unconstitutional  statute,  which  is  the  subject  matter  of  inquiry 
in  a  suit  already  pending  in  a  Federal  court,  the  latter  court, 
having  first  obtained  jurisdiction  over  the  subject  matter,  has 
the  right,  in  both  civil  and  criminal  cases,  to  hold  and  maintain 
such  jurisdiction,  to  the  exclusion  of  all  other  courts,  until  its 
duty  is  fully  performed.^^  But  the  Federal  court  cannot,  of  course, 
interfere  in  a  case  where  the  proceedings  were  already  pending  in  a 
State  court.^^  Where  a  criminal  proceeding  is  commenced  against 
one  who  is  already  party  to  a  suit  then  pending  in  a  court  of  equity, 
if  the  criminal  proceedings  are  brought  to  enforce  the  same  right 
that  is  in  issue  before  that  court,  the  latter  may  enjoin  such 
criminal  proceedings.^^  In  Dobbins  v.  Los  Angeles,^^  it  is  re- 
marked by  ]\Ir.  Justice  Day,  in  delivering  the  opinion  of  the 
court,  that  "  it  is  well  settled  that  where  property  rights  will 
be  destroyed,  unlawful  interference  by  criminal  proceedings 
under  a  void  law  or  ordinance  may  be  reached  and  controlled 
by  a  court  of  equity."  Smyth  v.  Ames  ^®  distinctly  enjoined  the 
proceedings  in  indictment  to  compel  obedience  to  the  rate  act.^^ 
These  cases  show  that  a  court  of  equity  is  not  always  precluded 
from  granting  an  injunction  to  stay  proceedings  in  criminal  cases. 

9  Ex  parte  Young,  209  U.  S.  123,  (U.    S.)    366,    370,    21    L.    ed.   287  ; 

52  L.  ed.  714,  28  S.  C.  441 ;  Western  Harkrader    v.    Wadley,    172    U.    S. 

Union    Telegraph   Co.    v.    Andrews,  148,  43  L.  ed.  399,    19  S.   C.   119; 

216  U.  S.  165;  54  L.  ed.  430,  30  S.  C.  Ex  parte  Young,  209  U.  S.  123,  155, 

286.  161,  52  L.  ed.  714,  727,  28  S.  C.  441. 

"  Fitts  V.  McGhee,  172  U.  S.  516,  "  Davis  etc.  Co.  v.  Los  Angeles, 

43  L.   ed.  535,   19  S.  C.  269 ;  New  189  U.  S.  207,  47  L.  ed.  778,  23  S.  C. 

Orleans  v.  Paine,  147  U.  S.  261,  37  498. 

L.  ed.  162,  13  S.  C.  303.  i^  195  u.  S.  223,  241,  49  L.  ed. 

"  See  Philadelphia  Co.  v.  Stimson,  169,  25  S.  C.  18.    See  also,  Davis  etc. 

223  U.  S.  605,  619,  et  seq.,  56  L.  ed.  Co.  v.  Los  Angeles,  supra. 

570,  .32  S.  C.  340 ;   Baker  v.  Swigart,  "  169  U.  S.  466,  42  L.  ed.  819, 

196  Fed.  569,  571.  18  S.  C.  418. 

'2  Prout  V.  Starr,   188  U.  S.  537,  ''  Ex  parte  Young,  209  U.  S.  123, 

544,  47  L.  ed.  584,  23  S.  C.  398.  155,   161,  52  L.  ed.  714,   28  S.   C. 

"Taylor    v.    Taintor,     16    Wall.  441. 
8 


Chap.  I]  ENJOINING  criminal  proceedings  [§  7  a 

The  decision  In  re  Sawyer  ^^  is  not  to  the  contrary.  That  case 
holds  that  in  general  a  court  of  equity  has  no  jurisdiction  of  a  bill 
to  stay  criminal  proceedings,  but  it  expressly  states  an  exception, 
unless  they  are  instituted  by  a  party  to  the  suit  already  pending 
before  it  and  to  try  the  same  right  that  is  in  issue  there. ^^ 

"124  U.  S.  200,  211,  31  L.  ed.  "  Ex  parte  Young,  supra. 

402,  8  S.  C.  482. 


CHAPTER  II 

JURISDICTION  OF  THE  FEDERAL  COURTS 

§   8.      Exclusive  Character  of  Jurisdiction. 

§   8  a.   Who  May  Bring  Suit. 

§   9.      Distinction  between  a  Court  and  Judge. 

§  10.      The  Procedure  in  the  Federal  Courts  in  Criminal  Cases  —  What  Law 

Controls. 
§  11.      Common  Law  Rules  —  How  Construed. 
§  12.      Rights   under   Federal    Constitution   as   Distinguished  from  Those 

Guaranteed  by  State  Laws. 
§  13.      The  Constitution  of  the  United  States  as  a  Guide  to  Procedure. 
§  14.       How  to  Preserve  the  Rights  Guaranteed  by  the  Federal  Constitution. 
§  14  a.  Removal  of  Criminal  Cases  from  State  to  the  Federal  Court. 

§  8.   Exclusive  Character  of  Jurisdiction. 

Section  24  of  the  Federal  Judicial  Code  provides  that  the 
District  courts  shall  have  original  jurisdiction  of  all  crimes 
and  offenses  cognizable  under  the  authority  of  tlie  United  States, 
while  Section  256  of  the  same  Code  makes  the  jurisdiction  of 
the  Federal  courts  in  criminal  cases  exclusive.  Whether  or 
not  the  Federal  Judicial  Code  which  came  into  effect  January 
1,  1912,  repealed  by  implication  Section  1014  of  the  Revised 
Statutes  of  the  United  States  authorizing  State  officials  and 
magistrates  to  issue  warrants  for  Federal  offenses  and  conduct 
preliminary  hearings  has  not  been  decided.  It  is  therefore  safe 
to  assume  that  aside  from  the  powers  granted  in  Section  1014  of 
the  Revised  Statutes  to  the  State  authorities,  the  jurisdiction 
of  the  Federal  courts  is  exclusive  and  that  as  to  the  powers 
granted  in  Section  1014  the  jurisdiction  of  the  Federal  courts 
is  concurrent  with  that  of  the  State  courts.     In  a  recent  case  ^ 

§  8.   1  United  States  v.  Mayer,  235  U.  S.  55,  59  L.  ed.  129,  35  S.  C.  16. 
10 


Chap.  II]  WHO   MAY   BRING   SUIT — PROCEDURE  [§  10 

the  Supreme  Court  of  the  United  States  held  that  jurisdiction 
cannot  be  conferred  by  consent  of  the  parties  in  a  criminal  case. 
The  question  of  jurisdiction  relates  to  the  power  of  the  court  and 
not  to  the  mode  of  procedure.  Accordingly,  it  was  held  that  a 
District  court  of  the  United  States  was  without  power  after  term 
to  entertain  an  application  for  new  trial  for  newly  discovered 
evidence  although  the  United  States  Attorney  duly  consented 
to  the  hearing  of  same. 

§  8  a.   Who  May  Bring  Suit. 

A  criminal  suit  in  the  Federal  courts  must  be  brought  in  the  name 
of  the  United  States  by  the  United  States  Attorney.^  The  United 
States  District  Attorney,  in  virtue  of  his  official  duty,  and  to  the 
extent  that  criminal  charges  are  susceptible  of  being  preferred  by 
information,  has  the  power  to  present  such  informations  without 
the  previous  approval  of  the  court ;  and  that  by  the  same  token 
the  duty  of  the  district  attorney  to  direct  the  attention  of  a 
grand  jury  to  crimes  which  he  thinks  have  been  committed  is 
coterminous  with  the  authority  of  the  grand  jury  to  entertain 
such  charges,^ 

§  9.  Distinction  between  a  Court  and  Judge. 

A  court  is  not  a  judge,  nor  a  judge  a  court.  A  judge  is  a  public 
officer,  who,  by  virtue  of  his  office,  is  clothed  with  judicial  author- 
ity. A  court  is  defined  to  be  a  place  in  which  justice  is  adminis- 
tered. It  is  the  exercise  of  judicial  power,  by  the  proper  office  or 
officers,  at  a  time  and  place  appointed  by  law.^ 

§  10.   The  Procedure  in  the  Federal  Courts  in  Criminal  Cases 

—  What  Law  Controls. 

Where  the  procedure  in  criminal  cases  is  prescribed  by  the  Con- 
stitution, a  Federal  statute,  or  a  rule  of  court,  that  is  controlling. 
When  not  so  provided,  the  procedure  is  regulated  by  the  common 
law  and  not  by  any  statute  or  rule  of  the  State  where  the  Federal 

§  8  a.   ^  Jacob    Hoffman    Brewing  ^  United  States  v.  Thompson  (U.  S. 

Co.    V.    McElligott,    259    Fed.    525,  Sup.  Ct.  decided  March  1,  1920). 

—  C.  C.  A.  —  (2d  Cir.) ;  Confisca-  §  9.  ^  Todd  v.  United  States, 
tion  Cases,  7  WaU.  (U.  S.)  454,  457,  158  U.  S.  278,  39  L.  ed.  982,  15  S.  C. 
19  L.  ed.  196.                  '  889. 

11 


§  10]  JURISDICTION   OF   THE   FEDERAX.  COURTS  [Chap.  II 

court  is  situated.^  The  reason  for  this  rule  is  that  the  Constitution 
of  the  United  States  has  in  a  large  sense,  for  the  protection  of  the 
individual,  prescribed  the  mode  of  procedure  and  defined  the  rights 
and  privileges  of  a  person  accused  of  crime  within  the  jurisdiction 
of  the  national  courts ;  as  the  Constitution  of  the  United  States 
is  the  supreme  law  of  the  land,  it  is  self  evident  that  the  State 
procedure  and  State  laws  cannot  be  controlling  in  the  Federal 
courts.^ 

§  11,   Common  Law  Rules  —  How  Construed. 

Many  of  the  rules  of  the  common  law  governing  criminal 
cases  have  been  superseded  by  statute.  However,  in  considering 
to  what  extent  a  Federal  statute  has  abrogated  a  rule  of  common 
law,  care  should  be  taken  that  the  common  or  the  general  law  is 
not  further  abrogated  by  such  a  statute  than  the  clear  import 
of  its  language  necessarily  requires.^  Whenever  a  departure 
from  common  law  rules  and  definitions  is  claimed,  the  purpose 
of  making  such  departure  should  be  clearly  shown. ^ 

§  12.  Rights  under  Federal  Constitution  as  Distinguished  from 
Those  Guaranteed  by  State  Laws. 

The  rights,  privileges  and  immunities  of  citizens  and  residents 
of  the  United  States,  which  are  protected  by  the  Constitution  of 
the  United  States,  are  those  which  arise  out  of  the  very  nature  and 
essential  character  of  the  national  government,  as  distinguished 
from  those  belonging  to  the  citizens  of  the  several  States.^  In 
United  States  v.  Cruikshank,  Chief  Justice  Waite  pointed  put 
this   distinction    in    the    following    language :    "  The    people    of 

§  10.   1  Tucker  v.   United  States,  §  11.   ^  Johnson  v.  Southern  Pac. 

196  Fed.  260.  262,  116  C.  C.  A.  62  Co.,  117  Fed.  462,  54  C.  C.  A.  508 

(7th  Cir.) ;    Logan  v.  United  States,  (8th  Cir.). 

144  U.  S.  263,  301,  36  L.  ed.  429,  2  Northern    Securities    v.    United 

442,  12  S.  C.  617 ;  St.  Clair  v.  United  States,  193  U.  S.  197,  48  L.  ed.  679, 

States,  154  U.  S.  134,  154,  38  L.  ed.  24  S.  C.  436. 

936,  943,   14  S.  C.   1002;    Jones  v.  §12.   1  United    States    v.    Cruik- 

United  States,  162  Fed.  417,  89  C.  C.  shank,  92  U.  S.  542,  23  L.  ed.  588. 

A.  303  (9th  Cir.) ;  Simmons  v.  United  See  also  In  re  Kemmler,  136  U.  S.  436, 

States,  142  U.  S.  148,  35  L.  ed.  968,  34  L.  ed.  519,  10  S.  C.  930 ;  Slaughter 

12   S.   C.   171 ;    Withaup  v.  United  House  Cases,  16  Wall.  36,  21  L.  ed. 

States,  127  Fed.  530,  62  C.  C.  A.  328.  394 ;    Orr  v.  Oilman,  183  U.  S.  278, 

2  Tinsley  v.  Treat,  205  U.  S.  20,  46  L.  ed.  196,  22  S.  C.  213,  and  au- 

51  L.  ed.  689,  27  S.  C.  430.  thorities  in  note  4  to  §  6,  supra. 
12 


Chap.  II]  THE   CONSTITUTION   AS   A  GUIDE  [§  14 

the  United  States  resident  within  any  State  are  subject  to  two 
governments :  one  State  and  the  other  National.  .  .  .  He  owes 
allegiance  to  the  two  departments,  so  to  speak,  and  within  their 
respective  spheres  must  pay  the  penalties  which  each  exacts  for 
disobedience  to  its  laws.  In  return  he  can  demand  protection 
from  each  within  its  own  jurisdiction.  .  .  .  The  same  person 
may  be  at  the  same  time  a  citizen  of  the  United  States  and  a 
citizen  of  a  State,  but  his  rights  of  citizenship  under  one  of  these 
governments  will  be  different  from  those  he  has  under  the 
other.  .  .  ."  The  courts  of  the  United  States  in  determining 
what  constitutes  an  offense  against  the  United  States  must  resort 
to  the  statutes  of  the  United  States  enacted  in  pursuance  of  the 
Constitution.^ 

§  13.  The  Constitution  of  the  United  States  as  a  Guide  to 
Procedure. 

From  the  very  commencement  of  a  prosecution  to  final  judg- 
ment, and  even  the  method  of  review,  a  person  within  the  terri- 
torial jurisdiction  of  the  United  States  is  protected  in  his  rights 
to  personal  liberty  and  security  by  the  several  provisions  of  the 
Constitution  of  the  United  States,  and  the  Amendments  thereto 
which  in  most  instances  are  self -executing.  Therefore  it  is 
incumbent  upon  all  to  first  consult  the  Constitution  of  the  United 
States  in  any  criminal  proceeding  or  whenever  an  investigation  of 
any  kind  is  conducted  under  any  act  of  Congress.^  From  time 
to  time  Congress  enacted  certain  laws  to  effectuate  the  purposes 
set  forth  in  the  Constitution.  These  constitutional  provisions, 
together  with  the  statutes  and  decisions  relating  thereto,  must  be 
strictly  followed  during  every  step  of  the  case.  They  will  be 
found  in  this  work  in  the  order  of  events  as  they  are  likely  to 
arise  in  actual  practice. 

§  14.  How  to  Preserve  the  Rights  Guaranteed  by  the  Federal 
Constitution. 

Care  should  be  taken  in  the  matter  of  presenting  constitutional 
questions.     In  Sugarman  v.  United  States,^  Mr.  Justice  Brandeis 

2  In  re  KoUock,   165  U.   S.   526,      447,  38  L.  ed.  1047,  14  S.  C.  1125. 
41  L.  ed.  813,  17  S.  C.  444.  §  14.   i  Sugarman  y.  United  States, 

§  13.  1  Interstate  ^  Commerce  249  U.  S.  182,  —  L.  ed.  — ,  —  S.  C. 
Commission  v.   Brimson,   154  U.  S.      — .     Decided  March  3,  1919. 

13 


§  14]  JURISDICTION   OF  THE   FEDERAL   COURTS  [Chap.  II 

held  that  a  constitutional  question  must  be  properly  raised  and 
that  mere  reference  to  the  Constitution  of  the  United  States  or 
even  to  a  specific  provision  of  same,  or  a  mere  assertion  to  a  claim 
under  it  will  not  authorize  the  Supreme  Court  of  the  United 
States  to  entertain  jurisdiction  to  review  the  questions  presented 
unless  the  questions  raised  are  substantial  in  character  and  were 
properly  presented  in  the  court  below.  It  is  therefore  imperative 
that  the  practitioner  should  state  with  clearness  the  claim  of 
privilege  or  immunity  arising  under  the  Constitution  or  laws  of 
the  United  States,  the  specific  section  of  the  Constitution  or 
Statute  relied  upon  and  also  wherein  and  how  the  constitutional 
rights  of  the  accused  were  or  are  being  infringed  upon.  If  it  is 
contended  that  a  statute  contravenes  the  provisions  of  the  Con- 
stitution of  the  United  States,  the  statute  should  be  set  forth  in 
detail  and  reasons  given  why  and  wherein  it  is  unconstitutional. 
Many  writs  of  error  are  dismissed  for  want  of  jurisdiction  for 
failure  to  observe  these  simple  rules.  It  cannot  be  too  often 
emphasized  that  the  constitutional  question  thus  raised  must  be 
substantial  in  character  or  the  writ  of  error  will  be  dismissed  as 
frivolous.  Where  a  substantial  constitutional  question  is  pre- 
sented, it  becomes  the  duty  of  the  United  States  Supreme  Court 
to  pass  upon  it.  As  was  said  by  Marshall,  C.  J.  in  Cohens  v. 
Virginia :  ^  "  We  have  no  more  right  to  decline  the  exercise  of 
jurisdiction  which  is  given,  than  to  usurp  that  which  is  not  given. 
The  one  or  the  other  would  be  treason  to  the  Constitution." 

§  14  a.  Removal  of  Cruninal  Cases  from  State  to  the  Federal 
Court. 

The  statute  provides :  "  That  when  any  civil  suit  or  criminal 
prosecution  is  commenced  in  any  court  of  a  State  against  any 
■*  officer  appointed  under  or  acting  by  authority  of  any  revenue 
law  of  the  United  States  now  or  hereafter  enacted,  or  against  any 
person  acting  under  or  by  authority  of  any  such  officer,  on  account 
of  any  act  done  under  color  of  his  office  or  of  any  such  law,  or  on  ac- 
count of  any  right,  title,  or  authority  claimed  by  such  officer  or  other 

2  6  Wheat.  264,  404,  19  L.  ed.  late  Jurisdiction  and  Procedure,  p. 
257,  291.  How  to  raise  a  Federal  ques-  142,  §  28,  also  p.  67,  §§  27,  28,  §§  31, 
tion,  see  also  ZoUnc's  Federal  Appel-      32,  p.  69. 

14 


Chap.  II]  removal  of  criminal  cases  [§  14  a 

person  under  any  such  law,  or  is  commenced  against  any  person 
holding  property  or  estate  by  title  derived  from  any  such  officer 
and  affects  the  validity  of  any  such  revenue  law,  or  against  any 
officer  of  the  courts  of  the  United  States  for  or  on  account  of  any 
act  done  under  color  of  the  office  or  in  the  performance  of  his 
duties  as  such  officer,  or  when  any  civil  suit  or  criminal  prosecution 
is  commenced  against  any  person  for  or  on  account  of  anything 
done  by  him  while  an  officer  of  either  House  of  Congress  in  the 
discharge  of  his  official  duty  in  executing  any  order  of  such  House, 
the  said  suit  or  prosecution  may  at  any  time  before  the  trial  or 
final  hearing  thereof  be  removed  for  trial  into  the  district  court 
next  to  be  holden  in  the  district  where  the  same  is  pending  upon 
the  petition  of  such  defendant  to  said  district  court  and  in  the 
following  manner :  Said  petitions  shall  set  forth  the  nature  of  the 
suit  or  prosecution  and  be  verified  by  affidavit  and,  together  with 
a  certificate  signed  by  an  attorney  or  counselor  at  law  of  some 
court  of  record  of  the  State  where  such  suit  or  prosecution  is 
commenced  or  of  the  United  States  stating  that,  as  counsel  for 
the  petitioner,  he  has  examined  the  proceedings  against  him  and 
carefully  inquired  into  all  the  matters  set  forth  in  the  petition, 
and  that  he  believes  them  to  be  true,  shall  be  presented  to  the 
said  district  court,  if  in  session,  or  if  it  be  not,  to  the  Clerk  thereof 
at  his  office,  and  shall  be  filed  in  said  office.  The  cause  shall 
thereupon  be  entered  on  the  docket  of  the  district  court  and  shall 
proceed  as  a  cause  originally  commenced  in  the  court;  but  all 
bail  and  other  security  given  upon  such  suit  or  prosecution  shall 
continue  in  like  force  and  effect  as  if  the  same  had  proceeded  to 
final  judgment  and  execution  in  the  State  court.  When  the  suit 
is  commenced  in  the  State  court  by  summons,  subpoena,  petition, 
or  any  other  process  except  capias,  the  clerk  of  the  district  court 
shall  issue  a  writ  of  certiorari  to  the  State  court  requiring  it  to  send 
to  the  district  court  the  record  and  the  proceedings  in  the  cause. 
When  it  is  commenced  by  capias  or  by  any  other  similar  form  of 
proceeding  by  which  a  personal  arrest  is  ordered,  he  shall  issue  a 
writ  of  habeas  corpus  cum  causa,  a  duplicate  of  which  shall  be 
delivered  to  the  clerk  of  the  State  court  or  left  at  his  office  by  the 
marshal  of  the  district  or  his  deputy  or  by  some  other  person  duly 
authorized  thereto;    and  thereupon  it  shall  be  the  duty  of  the 

15 


§  14  a]  JURISDICTION    OF   THE    FEDERAX,    COURTS  [Chap.  II 

State  court  to  stay  all  further  proceedings  in  the  cause  and  the  suit 
or  prosecution  upon  delivery  of  such  process,  or  leaving  the  same 
as  aforesaid,  shall  be  held  to  be  removed  to  the  district  court,  and 
any  further  proceedings,  trial,  or  judgment  therein  in  the  State 
court,  shall  be  void.  If  the  defendant  in  the  suit  or  prosecution 
be  in  actual  custody  on  mesne  process  therein,  it  shall  be  the  duty 
of  the  marshal,  by  virtue  of  the  writ  of  habeas  corpus  cum  causa, 
to  take  the  body  of  the  defendant  into  his  custody,  to  be  dealt 
with  in  the  cause  according  to  law  and  the  order  of  the  district 
court,  or,  in  vacation,  of  any  judge  thereof ;  and  if,  upon  the  re- 
moval of  such  suit  or  prosecution,  it  is  made  to  appear  to  the  dis- 
trict court  that  no  copy  of  the  record  and  proceedings  therein  in 
the  State  court  can  be  obtained,  the  district  court  may  allow 
and  require  the  plaintiff  to  proceed  de  nova  and  to  file  a  declaration 
of  his  cause  of  action,  and  the  parties  may  thereupon  proceed 
as  in  actions  originally  brought  in  said  district  court.  On  failure 
of  the  plaintiff  so  to  proceed,  judgment  of  non  prosequitur  may  be 
rendered  against  him,  with  costs  for  the  defendant."  In  the 
case  of  persons  engaged  in  the  military  service  of  the  United 
States  it  is  provided  by  the  articles  of  War  ^  "  When  any  civil 
suit  or  criminal  prosecution  is  commenced  in  any  court  of  a  State 
against  any  officer,  soldier,  or  other  person  in  the  military  service 
of  the  United  States  on  account  of  any  act  done  under  color  of 
his  office  or  status,  or  in  respect  to  which  he  claims  any  right, 
title,  or  authority  under  any  law  of  the  United  States  respecting 
the  military  forces  thereof,  or  under  the  law  of  war,  such  suit  or 
prosecution  may  at  any  time  before  the  trial  or  final  hearing  thereof 
be  removed  for  trial  into  the  district  court  of  the  United  States  in 
the  district  where  the  same  is  pending  in  the  manner  prescribed 
in  section  thirty-three  of  the  Act  entitled  '  An  Act  to  codify,  revise, 
and  amend  the  laws  relating  to  the  judiciary ',  approved  March 
third,  nineteen  hundred  and  eleven,  and  the  cause  shall  thereupon 
be  entered  on  the  docket  of  said  district  court  and  shall  proceed 
therein  as  if  the  cause  had  been  originally  commenced  in  said  dis- 
trict court  and  the  same  proceedings  had  been  taken  in  such 
suit  or  prosecution  in  said  district  court  as  shall  have  been  had 

§14a.   »  Section  33  of  the  Judicial      23,    1916,    chap.    399,    39    Stat.    L. 
Code  as  amended  by  the  Act  of  August      532. 
16 


Chap.  II]  REMOVAL   OF   CRIMINAX,   CASES  [§  14  a 

therein  in  said  State  court  prior  to  its  removal  and  said  district 
court  shall  have  full  power  to  hear  and  determine  said  cause."^ 
Former  Section  33  of  the  Judicial  Code  was  restricted  to  revenue 
officers  only  and  the  statute  was  strictly  construed.  The  amended 
statute  embraces  all  Federal  oflBcers. 

2  R.  S.  Section  1342,  amended  August  20,  1916,  c.  418,  Section  3,  39  Stat. 
6G9. 


VOL.  I  —  2  17 


CHAPTER   III 
DUE  PROCESS  OF  LAW 

§  15.  Constitutional  Provision  and  Definition. 

§  16.  "Due  Process"  as  Applied  to  Criminal  Procedure. 

§  17.  "Due  Process  of  Law"  Holds  Good  Even  in  Time  of  War. 

§  17  a.  When  Civil  Suits  Are  within  the  Meaning  of  the  Fourth  and  Fifth 

Amendments. 

§  17  b.  "Due  Process"  as  Applied  to  a  Deaf  Person. 

§  17  c.  "Due  Process"  Applied  to  Corporations. 

§  15.   Constitutional  Provision  and  Definition. 

The  Fifth  Amendment  to  the  Constitution  of  the  United  States 
among  other  things  provides :  "Nor  (shall  any  person)  be  deprived 
of  life,  liberty  or  property,  without  due  process  of  law  .  .  .  ."  Re- 
garding the  definition  of  the  term  "due  process  of  law  ",  the  United 
States  Supreme  Court  said :  ^  "  The  Constitution  contains  no 
description  of  those  processes  which  it  was  intended  to  allow  or 
forbid.  It  does  not  even  declare  what  principles  are  to  be  applied 
to  ascertain  whether  it  be  due  process.  It  is  manifest  that  it  was 
not  left  to  the  legislative  power  to  enact  any  process  which  might 
be  devised.  The  article  is  a  restraint  on  the  legislative,  as  well  as 
on  the  executive  and  judicial  powers  of  the  government  and  cannot 
be  so  construed  as  to  leave  Congress  free  to  make  any  process 
*  due  process  of  law  '  by  its  mere  will.  To  what  principles  then  are 
we  to  resort  to  ascertain  whether  this  process,  enacted  by  Congress, 
is  due  process?  To  this  the  answer  must  be  twofold.  We  must 
examine  the  Constitution  itself,  to  see  whether  this  -process  he  in  con- 
flict with  any  of  its  provisions.  If  not  found  to  be  so,  we  must  look 
to  those  settled  usages  and  modes  of  proceeding  existing  in  the 
common  and  statute  law  of  England  before  the  emigration  of  our 

§  15.   '  .John  Den  ex  dem.  Murray      Co.,  18  How.  272,  276,  277,  15  L.  ed. 
V.   Hoboken   Land   &   Improvement      372,  374. 

18 


Chap.  Ill]        "  DUE    PROCESS"    IN    CRIMINAL    PROCEDURE  [§  16 

ancestors,  and  which  are  shown  not  to  have  been  unsuited  to  their 
civil  and  pohtical  condition  by  having  been  acted  on  by  them  after 
the  settlement  of  this  country.  .  .  ."  It  is  the  duty  of  the  court 
to  protect  a  defendant  in  his  constitutional  rights  and  the  court 
will  not  permit  a  violation  of  such  rights  either  directly  or  in- 
directly.^ The  privileges  and  immunities  designated  in  the  Con- 
stitution of  the  United  States  are  those  which  of  right  belong  to 
the  citizens  of  all  free  governments.^  "  The  Constitution  of  the 
United  States  is  a  law  for  rulers  and  people,  equally  in  war  and 
peace,  and  covers  with  the  shield  of  its  protection  all  classes  of 
men,  at  all  times  and  under  all  circumstances."  ^  The  phrase 
"due  process  of  law  "  is  synonymous  with  "  the  law  of  the  land  "  in 
Magna  Charta.^  In  another  case,*  Mr.  Justice  Shiras  defined 
the  term  in  a  few  words  :  "  Due  process  of  law  is  process  according 
to  the  law  of  the  land.  .  .  ."  The  forms  of  law  should  be  strictly 
observed,  for  as  Mr.  Justice  Bradley  well  said  :  "  Unconstitutional 
practices  get  their  first  footing  by  silent  approaches  and  slight 
deviations  from  legal  modes  of  procedure.  This  can  only  be 
obviated  by  adhering  to  the  rule  that  constitutional  provisions  for 
the  security  of  the  person  and  property  should  be  liberally  con- 
strued." "^ 

§  16.   "  Due  Process  "  as  Applied  to  Criminal  Procedure. 

In  the  administration  of  criminal  law  it  may  be  laid  down 
broadly  that  no  one  can  be  deprived  of  life  or  liberty  except  by 
due  process  of  law  and  that  any  deprivation  of  any  right  of  an  ac- 
cused person  guaranteed  to  him  b}^  the  Constitution  of  the  United 
States,  or  by  any  act  of  Congress  or  by  the  settled  usage  of  the 
common  law,  is  tantamount  to  a  denial  of  due  process  of  law.  For 
the  purpose  of  ascertaining  whether  an  accused  person  was  accorded 

=  McKnight  v.  United  States,  115  ^  Davidson  v.  Board  of  Adminis- 

Fed.  972  (C.  C.  A.  6th  Cir.)-  trators  of  New  Orleans,  96  U.  S.  97, 

'  Slaughter  House  Cases,  16  Wall.  24  L.  ed.  616. 
(U.  S.)  36,  21  L.  ed.  394.  «  French  v.  Barber  Asphalt  Pav- 

^  Ex  parte  Orozco,  201  Fed.  106.  ing  Co.,  181  U.  S.  324,  45  L.  ed.  879, 

(Approving    Ex    parte    MiUigan,    4  21  S.  C.  625. 

Wall.  (U.  S.)  2,  18  L.  ed.  281.);  but,  ^  Boyd  v.  United  States,   116  U. 

see  remarks  of  Holmes,  J.  in  Schenk  S.  616,  635,  29  L.  ed.  746,  6  S.  C. 

V.  United  States,  249  Ur  S.  47,  —  L.  524. 
ed.  — . 

19 


§  16]  DUE  PROCESS   OF  LAW  [Chap.  Ill 

due  process  of  law,  the  several  provisions  of  the  Constitution  of 
the  United  States  relating  to  personal  liberty  and  security  should 
be  read  together  with  the  "due  process  of  law"  clause  contained 
in  the  Fifth  Amendment  to  the  Constitution  of  the  United  States.^ 
"Every  freeman  has  a  right  to  demand  the  enjoyment  of  proving 
his  innocence  simultaneous  with  the  first  step  of  the  prosecution."^ 
Accordingly,  it  is  not  within  the  province  of  a  legislature  or  Con- 
gress to  declare  an  individual  guilty  of  a  crime.^  Hence  a  trial 
without  a  compliance  with  the  Constitutional  requirements  is 
without  due  process  of  law  and  absolutely  void.'^  "Due  process 
of  law"  requires  notice  and  an  opportunity  to  be  heard. ^  The 
right  of  the  citizen  to  his  personal  liberty,  except  when  restrained 
of  it  upon  a  charge  of  crime,  and  for  the  purpose  of  judicial  in- 
vestigation, or  under  the  command  of  the  law  pronounced  through 
a  judicial  tribunal,  is  one  of  those  elementary  facts  which  lie  at 
the  foundation  of  our  political  structure.  The  cardinal  object  of 
our  Constitution,  as  it  is  the  end  of  all  good  government,  is  to 
secure  the  people  in  their  right  to  life,  liberty  and  property.  The 
more  certainly  to  attain  this  end,  the  framers  of  our  Constitution 
not  only  proclaimed  certain  great  principles  in  the  bill  of  rights, 
but  they  distributed  governmental  power  into  three  distinct 
departments,  each  of  which,  while  acting  in  its  proper  sphere,  was 
designed  to  be  independent  of  the  others.  To  the  legislative  depart- 
ment is  delegated  the  duty  to  declare  the  causes  for  which  the  liberty 
of  a  citizen  may  be  taken  from  him,  to  the  judicial  department  to 

§  16.   1  Callan  v.  WUson,   127  U.  Ex   parte    McClusky,    40   Fed.    71  ; 

S.  540,  32  L.  ed.  223,  8  S.  C.  1301 ;  United  States  v.  De  Walt,  128  U.  S. 

Boyd  V.   United   States,    116   U.   S.  393,  32  L.  ed.  485,  9  S.  C.  Ill;   Ex 

616,  29  L.  ed.  746,  6  S.  C.  524.  Parte  Van  Vranken,  47  Fed.  888. 

2  United  States  v.  Almeda,  U.  S.  »  Hovey  v.  Elliott,  167  U.  S.  409, 

Cir.  Ct.  2  Wheel.  Cr.  570,  approved  42  L.  ed.  215,  17  S.  C.  841 ;  Pennoyer 

in    Hastings    v.    Murchie,    219    Fed.  v.  Neff,  95  U.  S.  714,  24  L.  ed.  565 ; 

83  (C.  C.  A.  1st  Cir.).  Webster  v.  Reid,   11   How.    (U.   S.) 

'  McFarland   v.    American    Sugar  437,    13    L.    ed.    678 ;     Windsor    v. 

Refining  Co.,  241  U.  S.  79,  60  L.  ed.  McVeigh,  93  U.  S.  274,   23  L.  ed. 

899,  36  S.  C.  498.  914 ;    Reynolds  v.  Stockton,   140  U. 

*  Callan    v.    Wilson,    127    U.    S.  S.  254,  35  L,  ed.  464,  11  S.  C.  773; 

540,  32  L.  ed.  223,  8  S.  C.  1301 ;   Ex  Simon  v.  Craft,  182  U.  S.  427,  45  L. 

Parte  Wilson,  114  U.  S.  417,  29  L.  ed.   1165,  21   S.  C.  836;    Lasere  v. 

ed.  89,  5  S.  C.  935 ;   In  Re  Bain,  121  Rochereau,   17  WaU.  437,  21  L.  ed. 

U.  S.  1,  30  L.  cd.  849,  7  S.  C.  781;  694. 

20 


Chap.  Ill]        "  DUE    PROCESS  "    IN    CRIMINAL    PROCEDURE  [§  16 

determine  the  existence  of  such  causes  in  any  given  case,  and  to 
the  executive  to  enforce  the  sentence  of  the  court.  If  a  citizen  can 
be  arrested,  except  upon  a  charge  of  violated  law,  and  for  the  pur- 
pose of  taking  him  before  some  judicial  tribunal  for  investigation, 
then  it  is  plain  that  the  executive  department  has  usurped  the  func- 
tions of  the  other  two,  and  the  whole  theory  of  our  government, 
so  far  as  it  relates  to  the  protection  of  private  rights,  is  over- 
thrown. But  on  this  question  we  are  not  left  merely  to  argu- 
ments drawn  from  the  general  spirit  and  object  of  our  Constitu- 
tion. Our  forefathers  had  fresh  in  their  memory  the  struggles 
which  it  had  cost  in  England  to  secure  those  two  great  charters  of 
freedom,  the  Magna  Charta  of  King  John's  time  and  the  bill  of 
rights  of  1688,  and  they  incorporated  into  our  fundamental  law 
whatever  was  most  valuable  in  those  instruments  for  the  security 
of  life,  liberty  and  property.  They  provided  in  Article  4  of  the 
amendments,  that  "  The  right  of  the  people  to  be  secure  in  their 
persons,  houses,  papers,  and  effects,  against  unreasonable  searches 
and  seizures,  shall  not  be  violated,  and  no  Warrants  shall  issue, 
but  upon  probable  cause,  supported  by  Oath  or  affirmation,  and 
particularly  describing  the  place  to  be  searched,  and  the  persons  or 
things  to  be  seized."  They  further  provided  in  Article  5,  that  "  No 
person  shall  ...  be  deprived  of  life,  liberty,  or  property,  without 
due  process  of  law,"  and  in  Article  6,  that  "  In  all  criminal  prose- 
cutions, the  accused  shall  enjoy  the  right  to  a  speedy  and  public 
trial,  by  an  impartial  jury  of  the  State  and  district  wherein  the  crime 
shall  have  been  committed,  which  district  shall  have  been  previ- 
ously ascertained  by  law,  and  to  be  informed  of  the  nature  and  cause 
of  the  accusation;  to  be  confronted  with  the  witnesses  against 
him ;  to  have  compulsory  process  for  obtaining  Witnesses  in  his 
favor,  and  to  have  the  Assistance  of  Counsel  for  his  defense." 
A  general  warrant  without  a  sufficient  description  of  the  person 
or  thing  to  be  seized  is  wanting  in  due  process  of  law.®  Such  war- 
rants may  suit  the  purposes  of  a  despotic  power,  "but  cannot 
abide  the  pure  atmosphere  of  political  liberty  and  personal  free- 
dom." ^  The  Fourth  and  Fifth  Amendments  to  the  Constitution 
are  interrelated.^    The  basic  principle  of  English  and  American 

•  Boyd  V.  United  States,  116  U.  S.  ^  Boyd  v.  United  States,  supra,  632. 

616,  629,  29  L.  ed.  746,'  6  S.  C.  524.  «  Boyd  v.  United  States,  supra,  663. 

21 


§   16]  DUE    PROCESS    OF    LAW  [Chap.  Ill 

jurisprudence  is  that  no  man  shall  be  deprived  of  life,  liberty,  or 
property  without  due  process  of  law ;  and  notice  of  the  charge  or 
claim  against  him,  not  only  sufficient  to  inform  him  that  there  is 
a  charge  or  claim,  but  so  distinct  and  specific  as  clearly  to  advise 
him  what  he  has  to  meet,  and  to  give  him  a  fair  and  reasonable 
opportunity  to  prepare  his  defense,  is  an  indispensable  element  of 
that  process.  When  one  is  indicted  for  a  serious  offense,  the 
presumption  is  that  he  is  innocent  thereof,  and  consequently  that 
he  is  ignorant  of  the  facts  on  which  the  pleader  founds  his  charges, 
and  it  is  a  fundamental  rule  that  the  sufficiency  of  an  indictment 
must  be  tested  on  the  presumption  that  the  defendant  is  innocent 
of  it  and  has  no  knowledge  of  the  facts  charged  against  him  in 
the  pleading.^  It  is  essential  to  the  sufficiency  of  an  indictment 
that  it  set  forth  the  facts,  which  the  pleader  claims  constitute  the 
alleged  transgression,  so  distinctly  as  to  advise  the  accused  of  the 
charge  which  he  has  to  meet,  and  to  give  him  a  fair  opportunity 
to  prepare  his  defense,  so  particularly  as  to  enable  him  to  avail 
himself  of  a  conviction  or  acquittal  in  defense  of  another  prosecu- 
tion for  the  same  offense,  and  so  clearly  that  the  court  may  be  able 
to  determine  whether  or  not  the  facts  there  stated  are  sufficient 
to  support  a  conviction.^" 

§  17.  "  Due  Process  of  Law  "  Holds  Good  Even  in  Time  of 
War. 

The  "  due  process  of  law  "  clause  of  the  Constitution  of  the  United 
States  is  applicable  in  time  of  war  as  well  as  in  peace.  Martial 
law  can  never  exist  when  the  courts  are  open,  and  this  applies  even 
to  the  locality  of  actual  war.    Presidential  warrants  are  prohibited,^ 

»  Fontana  v.   United  States,   262  States,  133  Fed.  337,  341,  G6  C.  C.  A. 

Fed.  283,  286  (C.  C.  A.  8th  Cir.) ;  399,  403 ;  Armour  Pkg.  Co.  v.  United 

MUler   V.    United   States,    133   Fed.  States,  153  Fed.  1,  16,  17,  82  C.  C.  A. 

337,  341,  66  C.  C.  A.  399,  403 ;  Naftz-  135,  150,  151 ;    Etheredge  v.  United 

ger  V.  United  States,  200  Fed.  494,  States,  186  Fed.  434,  108  C.  C.  A. 

602,  118  C.  C.  A.  598,  604.  356;    Winters  v.  United  States,  201 

"Fontana  v.  United  States,  262  Fed.  845,   848,    120   C.   C.   A.    175, 

Fed.  283,  at  page  286,  —  C.  C.  A.  —  178 ;     Horn    v.    United   States,    182 

(8th  Cir.) ;   United  States  v.  Britton,  Fed.  721,  722,  105  C.  C.  A.  163,  167. 

107  U.  S.  665,  669,  670,  27  L.  ed.  §  17.   '  Ex  parte  MilHgan,  4  Wall. 

520,  2  S.  C.  512;    United  States  v.  2, 18  L.  ed.  281 ;  6wf  see,  note  4  to  §  15, 

Hc83,  124  U.  S.  483,  488,  31  L.  ed.  supra. 
616,  8  S.  C.  571 ;    Miller  v.  United 
22 


Chap.  Ill]     "  DUE   PROCESS  "    IN   QUASI-CRIMINAL   CASES  [§  17  b 

but  the  constitutionality  of  the  recent  statute  granting  the  Presi- 
dent the  power  to  cause  the  arrest  and  internment  of  enemy 
aliens  was  upheld  by  a  Federal  District  Judge,^  and^  a  convic- 
tion was  sustained  for  rescuing  an  enemy  alien  arrested  upon  a 
presidential  warrant  under  the  provision  of  §§  4067-4070  Rev. 
Stat,  of  United  States,  and  the  Court  further  held  that  the  "  Due 
Process  of  Law  "  clause  of  the  Constitution  does  not  apply  to  an 
alien  enemy.  This  case  also  holds  that  habeas  corpus  does  not  lie 
at  the  instance  of  an  alien  enemy.  Whether  one  is  subject  to 
military  law  and  trial  by  court  martial  depends  on  whether  he  is 
a  member  of  the  land  and  naval  forces  of  the  United  States.^ 

§  17  a.  When  Civil  Suits  Are  within  the  Meaning  of  the 
Fourth  and  Fifth  Amendments. 

Suits  for  penalties  and  forfeitures  incurred  by  the  commission 
of  offenses  against  the  law  are  of  a  quasi-criminal  nature  and  are 
within  the  reason  of  criminal  proceedings  for  all  the  purposes  of 
the  Fourth  and  of  that  portion  of  the  Fifth  Amendment  which 
declares  that  no  person  shall  be  compelled  in  any  criminal  case  to 
be  a  witness  against  himself  and  a  defendant  cannot  be  compelled 
to  produce  his  private  books  and  papers.  Such  compulsion  is 
equivalent  to  compelling  him  to  be  a  witness  against  himself  and 
amounts  to  an  unreasonable  search  and  seizure.^ 

§  17  6.   "Due  Process  "  as  Applied  to  a  Deaf  Person. 

When  a  totally  deaf  person  is  on  trial,  it  is  the  duty  of  the  Court 
to  see  that  the  defendant  is  provided  with  an  ear  drum,  or  the  evi- 
dence read  or  repeated  to  him,  so  that  he  may  be  advised  what  is 
going  on  at  the  trial.  But  when  no  request  is  made  to  this  effect 
by  the  accused  or  his  counsel,  the  failure  to  so  provide  the  defend- 
ant with  a  proper  appliance  so  that  he  may  hear  the  evidence,  or  to 
read  or  to  repeat  the  evidence,  will  be  regarded  merely  as  an  irreg- 
ularity and  not  as  a  trial  wanting  in  due  process  of  law.^ 

2  Ex  parte  Graber,  247  Fed.  882.  116  U.  S.  616,  635,  29  L.  ed.  746,  6 

«  De  Lacy  v.  United  States,  249  S.  C.  524. 
Fed.  625  (C.  C.  A.  9th  Cir.).  §  17   6.    i  Felts   v.    Murphy,   201 

*  Ex  parte  Jochen,  257  Fed.  200.  U.  S.  123,  50  L.  ed.  689,  26  S.  C. 

§  17  a.  1  Boyd  v.  United  States,  366. 

23 


§17c] 


DUE   PROCESS   OF  LAW 


[Chap.  Ill 


§  17  c.   "Due  Process"  Applied  to  Corporations. 

While  the  provision  against  self-incrimination  is  not  available 
to  corporations/  nevertheless  all  provisions  as  to  due  process  of 
law  are  applicable  to  corporations  as  well  as  to  natural  persons. 
In  one  case  ^  Chief  Justice  Waite  said :  "The  Court  does  not  wish 
to  hear  argument  on  the  question  whether  the  provision  in  the 
Fourteenth  Amendment  to  the  Constitution,  which  forbids  a  State 
to  deny  to  any  person  within  its  jurisdiction  the  equal  protection 
of  the  laws,  applies  to  these  corporations.  We  are  all  of  opinion 
that  it  does.  ..." 


§  17  c.  1  Hale  v.  Henkel,  201  U.  S. 
43,  50  L.  ed.  652,  26  S.  C.  370. 
See  also  Chapter  self-incrimination. 

'  Santa  Clara  County  v.  Southern 
Railway  Company,  118  U.  S.  394, 
30  L.  Ed.  118,  6  S.  C.  1132.  See  also 
Pembina  Mining  Company  v.  Penn- 
sylvania, 125  U.  S.  181,  31  L.  ed.  650, 
8  S.  C.  737;  Missouri  Pacific  Rail- 
way Company  v.  Mackey,  127  U.  S. 
205,  32  L.  ed.  107,  8  S.  C.  1161; 
Minneapolis  &  St.  Louis  Railway 
Company  v.  Beckwith,  129  U.  S.  26, 


32  L.  ed.  585,  9  S.  C.  207 ;  Charlotte 
&c.  Railroad  v.  Gibbes,  142  U.  S. 
386,  35  L.  ed.  1051,  12  S.  C.  255; 
Monongahela  Navigation  Company 
V.  United  States,  148  U.  S.  312, 
37  L.  ed.  463,  13  S.  C.  622;  Gulf, 
Colorado  &  Santa  Fe  Ry.  v.  EUis, 
165  U.  S.  150,  154,  41  L.  ed.  666, 
17  S.  C.  255,  and  cases  cited ;  Chicago, 
BurUngton  &  Quincy  Railroad  Com- 
pany V.  Chicago,  166  U.  S.  226,  41 
L.  ed.  679,  17  S.  C.  581. 


24 


CHAPTER  IV 
ARREST  WITHOUT  WARRANT 

§  18.  "Due  Process  of  Law"  as  a  Protection  from  Arrest  without  Warrant  — 

Exceptions  to  Rule. 

§  19.  Arrest  for  Felony. 

§  20.  Arrest  without  Warrant  in  Revenue  Cases. 

§  21.  Arrest  without  Warrant  of  Army  and  Navy  Deserter. 

§  22.  Special  Provisions  for  Arrest  in  Forest  Reservations. 

§  23.  Who  May  Make  an  Arrest. 

§  24.  Powers  and  Duties  of  United  States  Marshals. 

§  25.  Arrest  for  Misdemeanor. 

§  26.  Officer  Must  Exhibit  Warrant. 

§  27.  Arrest  under  an  Invalid  Statute. 

§  28.  Burden  on  Officer  to  Prove  Probable  Cause. 

§  29.  Duty  of  Arresting  OflBcer  to  Take  Prisoner  without  Delay  to  Nearest 

Magistrate. 

§  30.  Rewards  for  Arrest. 

§  31.  Arrest  by  a  Private  Individual. 

§  18.  "  Due  Process  of  Law  "  as  a  Protection  from  Arrest 
without  Warrant  —  Exceptions  to  Rule, 

It  is  an  elementary  principle  of  our  political  institutions  that 
every  person  in  our  land  is  entitled  to  immunity  from  arrest, 
except  by  due  process  of  laiv  and  for  cause.  A  peace  officer  or  a 
United  States  Marshal  may,  without  a  warrant,  arrest  a  person 
who  commits  or  attempts  to  commit  a  crime  in  his  presence; 
or  when  a  felony  is  committed  not  in  his  presence  where  he  has 
reasonable  cause  for  believing  the  person  arrested  committed 
the  felony.^     And  in  making  such  an  arrest  it  is  the  duty  and  right 

§  18.  1  Snead  v.  Bonnoil,  166  326 ;  Allen  v.  Lopinsky,  94  S.  E. 
N.  Y.  325,  59  N.  E.  899;  Chandler  369;  State  v.  Evans,  161  Missouri, 
V.  Rutherford,  101  Fed.  775,  43  C.  95,  61  S.  W.  95;  Burroughs  v. 
C.  A.  218  (8th  Cir.);  Hauser  v.  Eastman,  101  Mich.  419,  59  N.  W. 
Bieber,  197  S.  W.  68,  271  Missouri,      817,  24  L.  R.  A.  859,  45  Am.  St. 

25 


§  18]  ARREST   WITHOUT   WARRANT  [Chap.  IV 

of  every  citizen  to  assist,  and  it  is  also  a  citizen's  duty  to  disclose 
to  the  executive  officers  any  information  he  may  have  of  the 
commission  of  any  offense  against  the  laws.^  And  it  may  be 
safely  laid  down  as  rule  that  the  protection  of  the  individual 
against  unlawful  restraints  and  false  accusations  commences  at 
the  inception  of  any  criminal  proceeding.^  Imprisonment  without 
process  is  false  imprisonment.'*  And  except  by  due  process  of 
law  no  one  can  be  deprived  of  liberty.  Mr.  Justice  Field  ^  says 
that  by  the  term  "  liberty  ",  as  used  in  the  Fifth  Amendment, 
something  more  is  meant  than  mere  freedom  from  physical  restraint 
or  the  bounds  of  a  prison.  It  means  freedom  to  go  where  one 
may  choose,  and  to  act  in  such  manner,  not  inconsistent  with  equal 
rights  of  others,  as  his  judgment  may  dictate  for  the  promotion 
of  his  happiness ;  that  by  the  term  "  life  ",  as  referred  to  in  the 
same  amendment,  something  more  is  meant  than  mere  animal 
existence.  The  inhibition  against  its  deprivation  extends  to  all 
those  limbs  and  faculties  by  which  life  is  enjoyed. 

§  19.  Arrest  for  Felony. 

The  rule  of  common  law  as  to  the  right  of  arrest  without  a 
warrant  in  cases  of  felony  was  generally  adopted  by  the  courts  of 
the  several  States.^  A  fugitive  from  justice  may  be  arrested 
without  a  warrant  by  a  proper  peace  officer  provided  he  has 
reasonable  cause  to  believe  he  has  committed  a  felony.^  The 
authority  to  hold  a  prisoner  for  a  reasonable  time  for  such  pro- 
Rep.  419.  Snead  v.  Bonnoil,  166  §  19.  i  Kurtz  v.  Moffitt,  115  U.  S. 
N.  Y.  325  is  cited  in  People  v.  Ma-  487,  29  L.  ed.  458,  6  S.  C.  148; 
rendi,  107  N.  E.  1058,  213  N.  Y.  Pritchett  v.  Sullivan,  182  Fed.  480, 
610:  "There  is  no  such  lawful  thing  104  C.  C.  A.  624  (8th  Cir.) ;  Union 
as  an  arrest  without  an  apparent  Pac.  R.  Co.  v.  Belek,211  Fed.  699,  702. 
or  disclosed  cause."  Shugart  v.  ^  Union  Pac.  R.  Co.  v.  Belek, 
Cruise,  260  Fed.  36,  —  C.  C.  A.  —  211  Fed.  699;  State  v.  Taylor,  70 
(4th  Cir.).                                                    Vt.  1,  39  Atl.  447,  42  L.  R.  A.  673,  67 

2  In  Re  Quarles,  158  U.  S.  532,  39  Am.  St.  Rep.  648 ;  State  v.  Anderson, 
L.  ed.  1080,  15  S.  C.  959.  1   Hill   (S.  C),  327 ;    In  re  Henry, 

'  United  States  v.  Rubin,  214  Fed.  29  How.  Prac.  (N.  Y.)  185;  Cochran 
507.  V.  Toher,   14  Minn.  385  (Gil.  293); 

*  Town  of  Odell  v.  Schroeder,  Simmons  v.  Vandyke,  138  Ind. 
.58  111.  353 ;  Shugart  v.  Cruise,  260  380,  37  N.  E.  973,  26  L.  R.  A.  33,  46 
Fed.  36,  —  C.  C.  A.  —  (4th  Cir.).  Am.  St.  Rep.  411.     As  to  arrest  on 

''  Munn  V.  Illinois,  94  U.  S.  113,  Telegram  see  Voorhees  on  Arrest, 
142,  24  L.  ed.  77,  90.  2d  ed.  §  20. 

2G 


Chap.  IV]      ARREST   WITHOUT   WARRANT    IN    REVENUE    CASES      [§  20 

ceedings  to  be  instituted  is  well  established.^  The  officer  making 
the  arrest  from  personal  observation  will  be  held  liable  for  making 
a  false  arrest,  if  no  offense  was  in  fact  committed.'*  The  arrest 
and  detention  of  a  person  without  a  warrant  by  an  officer  for  a 
felony  cannot  be  justified  on  the  ground  that  at  the  time  of  the 
arrest  the  person  so  arrested  was,  unknown  to  the  officer  arresting 
him,  guilty  of  carrying  concealed  weapons.''  Judge  Hanford  ^ 
held  that  though  a  person  arrested  and  imprisoned  without 
warrant,  and  for  an  alleged  crime  of  which  the  officer  arresting 
had  no  personal  knowledge  and  the  person  arrested  is  in  fact 
innocent,  it  is  nevertheless  not  false  imprisonment,  if  the  officer 
acted  upon  information  received  from  one  on  whom  he  had  reason 
to  rely.  The  authority  to  hold  one  in  proceedings  instituted 
under  Section  1014  Revised  Statutes  of  the  United  States,  the 
culmination  of  which  means  the  removal  of  the  person  to  another 
State,  is  quite  distinct  from  the  authority  to  make  a  preliminary 
arrest,  until  a  proper  complaint  can  be  made,  and  a  warrant 
obtained."  An  officer  who  has  not  witnessed  the  commission 
of  the  offense  may  not,  after  it  had  ceased,  arrest  the  wrongdoer,^ 
unless  the  arrest  was  for  felony.  It  has  been  recently  held  ^ 
that  an  officer  may  be  resisted  by  force,  when  he  undertakes  to 
arrest  a  person  without  a  warrant  in  a  case  where  he  is  not  au- 
thorized to  do  so  by  law. 

§  20.  Arrest  without  Warrant  in  Revenue  Cases. 

Congress  made  special  provision  for  arrest  in  revenue  cases. 
They  are  as  follows  :  "  Operating  illicit  distillery  ;  arrest ;  bail. 
Where  any  marshal  or  deputy  marshal  of  the  United  States  within 
the  district  for  which  he  shall  be  appointed  shall  find  any  person 
or  persons  in  the  act  of  operating  an  illicit  distillery,  it  shall  be 

•Union    Pac.    R.    Co.    v.    Belek,  '  See  Virginia  v.  Paul,  148  U.S.  119, 

211  Fed.  699,  707,  and  cases  cited.  37  L.  ed.  386,  13  S.  C.  536;  Union 

*Sigmon  v.  Shell,  165  N.  C.  582,  Pac. R.  Co.?'.  Belek,  211  Fed.  699,707. 

81  S.  E.  739.  8  Newton  t-.  Locklin,  77  lU.  103 ; 

« Gobbet    V.    Grey,    4    Ex.    729;  People  v.  Haley,  48  Mich.  495,   12 

Jackson    v.    Knowlton,     173    Mass.  N.  W.  671 ;   State  v.  Lewis,  50  Ohio, 

94 ;   53  N.  E.  134  ;  Snead  v.  Bonnoil,  179,  33  N.  E.  405  ;  Jameson  v.  Gaer- 

166  N.  Y.  325,    59  N.  E.  899.  nett,  10  Bush.  221. 

«  Van   V.    Pacific    Coast    Co.,  120  '  Montana  v.  Bradshaw,  53  Mon- 

Fed.  069.                     "  tana,  96,  161  Pac.  710. 

27 


§  20]  ARREST   WITHOUT   WARRANT  [Chap.  IV 

lawful  for  such  marshal  or  deputy  marshal  to  arrest  such  person 
or  persons,  and  take  him  or  them  forthwith  before  some  judicial 
officer  named  in  section  one  thousand  and  fourteen  of  the  Revised 
Statutes,  who  may  reside  in  the  county  of  arrest  or  if  none,  in  that 
nearest  to  the  place  of  arrest,  to  be  dealt  with  according  to  the 
provisions  of  sections  ten  hundred  and  fourteen,  ten  hundred 
and  fifteen,  ten  hundred  and  sixteen  of  the  said  Revised  Statutes."  ^ 
"  Warrants  of  arrest  for  violation  of  internal  revenue  laws  may 
be  issued  by  United  States  commissioners  upon  the  sworn  com- 
plaint of  a  United  States  district  attorney,  assistant  United  States 
district  attorney,  collector  or  deputy  collector  of  internal  revenue 
or  revenue  agent  or  private  citizen,  but  no  such  warrant  of  arrest 
shall  be  issued  upon  the  sworn  complaint  of  a  private  citizen 
unless  first  approved  in  writing  by  a  United  States  district 
attorney,"  ^ 

§  21.   Arrest  without  Warrant  of  Army  and  Navy  Deserter. 

The  general  rule  has  always  been  that  a  police  officer  of  the  State 
or  private  citizen  cannot  lawfully  arrest  a  deserter  from  the 
army  without  a  warrant  or  military  order.^  During  the  Spanish 
American  War,  by  congressional  enactment,  this  rule  was  changed.^ 
But  this  act  was  held  not  to  give  any  protection  to  a  private 
detective  making  an  arrest  of  an  alleged  deserter  or  straggler 
from  the  navy  without  a  warrant.^ 

§  22.   Special  Provisions  for  Arrest  in  Forest  Reservations. 

By  an  act  for  the  protection  of  the  public  forest  reserves  and 
national  parks  of  the  United  States,^  it  is  provided :  "  That  all 
persons  employed  in  the  forest  reserve  and  national  park  service 
of  the  United  States  shall  have  authority  to  make  arrest  for  the 
violation  of  the  laws  and  regulations  relating  to  the  forest  reserves 

§20.   lAct    of    March    1,    1879,  Act   of   Feb.    16,    1909,   Chap.    131, 

c.  125,  §  9,  20  Stat.  L.  341.  §  15.     In    re    Matthews,    122    Fed. 

2  Act  of   May  28,    1896,   c.   252.  248 ;  In  re  Fair,  100  Fed.  149 ;  State 

§  19,  29  Stat.  L.  184.  v.  Pritchctt,  219  Missouri,  696. 

§21.    'Kurtz  ?;.  Mofhtt,  115  U.S.  'People   v.    Hamilton,    183    App. 

487,  29  L.  cd.  458,  6  S.  C.  148.  Div.  (N.  Y.)  55,  170  N.  Y.  Suppl. 

2  Act  of  June   18,    1898,   c.  469,  705. 

H     0,     30     Stat.     L.    484,     U.    S.  §22.   i  Act    of    Feb.    0,    1905,  c. 

Compiled    Stat.     1910,     No.    2297;  450,  33  Stat.  L.  700. 

28 


Chap.  IV]  POWERS    OF   UNITED    STATES    MARSHALS  [§  24 

and  national  parks,  and  any  person  so  arrested  shall  be  taken  before 
the  nearest  United  States  Commissioner,  within  whose  juris- 
diction the  reservation  or  national  park  is  located,  for  trial ; 
and  upon  sworn  information  by  any  competent  person  any  United 
States  commissioner  in  the  proper  jurisdiction  shall  issue  process 
for  the  arrest  of  any  person  charged  with  the  violation  of  said  laws 
and  regulations ;  but  nothing  herein  contained  shall  be  construed 
as  preventing  the  arrest  by  any  officer  of  the  United  States,  with- 
out process,  of  any  person  taken  in  the  act  of  violating  said  laws 
and  regulations." 

§  23.  Who  May  Make  an  Arrest. 

Section  270  of  the  Federal  Judicial  Code  provides :  "  The 
judges  of  the  Supreme  Courts  and  of  the  Circuit  Courts  of  Appeals 
and  District  Courts,  United  States  Commissioners,  and  the 
judges  and  other  magistrates  of  the  several  States,  who  are  or  may 
be  authorized  by  law  to  make  arrests  for  offenses  against  the 
United  States,  shall  have  like  authority  to  hold  for  security  of 
the  peace  and  for  good  behavior,  in  cases  arising  under  the  Con- 
stitution and  laws  of  the  United  States,  as  may  be  lawfully 
exercised  by  any  judge  or  justice  of  the  peace  of  the  respective 
States,  in  cases  cognizable  before  them."  ^ 

§  24.  Powers  and  Duties  of  United  States  Marshals. 

The  scope  of  power  of  a  United  States  Marshal  or  his  deputy 
depends  on  the  law  of  the  State  in  which  he  is  making  the  arrest. 
He  has  the  same  rights  and  powers  in  making  arrests  as  the  sheriff 
has  in  the  particular  State.^  A  United  States  Marshal  has  only 
power  to  act  in  the  State  to  which  he  has  been  assigned.^  A 
United  States  Marshal  may  be  sued  in  the  State  court  by  the 
injured  party  in  trespass  vi  et  armis  for  damages  sustained  by  reason 
of  the  wrongful  arrest.^     An  officer  may  arrest  without  warrant 

§23.  i/See  also  Chapters  7  and  9  hart,  106  Fed.  911;  Sec.  788,  U.  S. 
on  ARREST  ON  WARRANT,  PRELiMi-  Revised  Statutes.  But  under  new 
NARY     HEARING,     and     POWERS     OF      statute    the   right   to  remove  exists. 

UNITED   STATES   COMMISSIONERS.  *See§14o. 

§  24.   1  United  States  v.   Harden,  "^  In  re  Anderson,  94  Fed.  487. 

10  Fed.  802;    In  re  Acier,   6G  Fed.  ^  Hannah  f.  Steinberger,  6  Blatchf. 

290;    hut  see  United  States  v.  Fuel-      520. 

29 


§  24]  ARREST   WITHOUT  WARRANT  [Chap.  IV 

one  who  threatens  to  commit  a  felony.     When  sued  for  false  arrest 
he  must  show  reasonable  cause  as  an  affirmative  defense.^ 

§  25.  Arrest  for  Misdemeanor. 

At  common  law  a  peace  officer  could  not  arrest  without  a 
warrant  a  person  who  committed  a  misdemeanor  whether  in  his 
presence  or  not.  A  breach  of  the  peace  was  the  one  exception  to 
this  rule.^  An  officer  could  arrest  one  who  committed  a  breach 
of  the  peace  in  his  presence.^ 

§  26.   Officer  Must  Exhibit  Warrant. 

An  officer  when  making  arrest  must  produce  his  warrant  upon 
request.^  It  is  illegal  for  a  peace  officer  to  arrest  a  person  charged 
with  the  commission  of  a  misdemeanor  unless  he  has  in  his 
possession  a  warrant  for  this  person's  arrest.  It  is  no  defense  that 
a  warrant  has  been  issued,  or  that  it  is  in  the  possession  of  the 
constable's  superior  officer,  or  that  the  person  arrested  made  no 
demand  for  the  warrant.^  After  demanding  the  opening  of  the 
doors  of  a  man's  dwelling  house,  it  is  the  duty  of  an  officer  with  a 
warrant  charging  a  misdemeanor  to  break  the  doors,  and,  if  the 
accused  resists,  and  in  the  struggle  injures  or  kills  the  officer,  he 
is  a  wrongdoer.^  An  officer  has  the  right  to  stop  a  train  or  stage- 
coach to  effect  an  arrest.'*  Inevitably  it  follows  that  if  in  the 
exercise  of  the  duty  to  stop  the  train  and  make  the  arrest  the  officer 
steps  on  the  engine,  and  the  engineer  initiates  a  struggle  with 
the  officer  to  wrest  the  temporary  control  of  the  engine  from  him, 

^Schwarz  ;;.   Poehlmann,  178   111.  2  The  Matter  of  Way,  41  Michigan, 

App.    235;     Cook    v.   Hastings,    150  299,  1  N.  W.  1021;   Roberts  v.  The 

Michigan,  289,  114  N.  W.  71.  State,  14  Missouri,  138. 

§  25.   1  John  Bad    Elk  v.   United  §  26.   1  Gaillard  v.  Laxton,  2  Best 

States,  177  U.  S.  529,  44  L.  ed.  874,  &    Smith    Queens    Bench    Reports, 

20  S.   C.   729  ;    Wooding  v.  Oxley,  363. 

9  C.   &  P.   1 ;   Burns   v.    Erben,   40  ^  Gaillard   v.   Laxton,    2   Best   & 

N.  Y.  463 ;   Palmer  v.  Maine  C.  Ry.  Smith  Queens  Bench  Reports,   363. 

Co.,    92    Maine,    399;     McCullough  But  see  local  statutes  changing  this 

V.    Greenfield,     133     Mich.    463,    95  rule,  particularly  acts,   1912  c.  482, 

N.  W.  532 ;    Baynes   v.  Brewster,   2  Laws  of  Massachusetts. 

Queens    Bench,    375 ;     McMorris   v.  '  Weissengoff  v.  Davis,  260  Fed. 

HoweU,   89  Appellate  Div.   (N.  Y.)  10,  —  C.  C.  A.  —  (4th  Cir.). 

272 ;  Porter  v.  The  State,  124  Georgia,  *  Weissengoff  v.  Davis,  supra. 
297,  52  S.  E.  283. 
30 


Chap.  IV]  arrest   UNDER   AN   INVALID    STATUTE  [§  27 

he  is  liable  for  the  consequences  of  the  struggle.  It  would  hardly 
be  disputed  that  if  defendant  after  arrest  had  pointed  a  gun  at 
the  sheriff  as  a  means  of  effecting  his  escape,  and  in  the  struggle 
for  the  possession  of  the  gun  it  had  been  accidentally  discharged, 
and  killed  the  sheriff,  the  defendant  would  be  civilly  liable.  It 
is  true  that,  if  in  such  a  struggle  initiated  by  the  defendant  the 
officer  does  a  wanton  or  malicious  act  resulting  in  injury  to  the 
defendant,  he,  and  not  the  defendant,  would  be  responsible.^ 
In  Ex  parte  Siebold,^  the  following  pertinent  remarks  were  made  by 
Mr.  Justice  Bradley :  "  Why  do  we  have  marshals  at  all,  if  they 
cannot  physically  lay  their  hands  on  persons  and  things  in  the 
performance  of  their  proper  duties?  What  functions  can  they 
perform,  if  they  cannot  use  force?  In  executing  the  processes 
of  the  courts,  must  they  call  on  the  nearest  constable  for  protection  ? 
Must  they  rely  on  him  to  use  the  requisite  compulsion,  and  to 
keep  the  peace,  whilst  they  are  soliciting  and  entreating  the  parties 
and  bystanders  to  allow  the  law  to  take  its  course?  .  .  .  The 
argument  is  based  on  a  strained  and  impracticable  view  of  the 
nature  and  powers  of  the  national  government.  It  must  execute 
its  powers,  or  it  is  no  government.  It  must  execute  them  on  the 
land  as  well  as  on  the  sea,  on  things  as  well  as  on  persons.  And, 
to  do  this,  it  must  necessarily  have  power  to  command  obedience, 
preserve  order,  and  keep  the  peace;  and  no  person  or  power  in 
this  land  has  the  right  to  resist  or  question  its  authority,  so  long 
as  it  keeps  within  the  bounds  of  its  jurisdiction."  The  fact  that 
the  mails  may  be  interrupted  through  the  making  of  an  arrest 
of  a  government  employee  charged  with  the  commission  of  an 
oifense,  will  not  relieve  the  accused  person  from  arrest  and  the 
officer  making  the  arrest  will  be  protected.^ 

§  27.   Arrest  under  an  Invalid   Statute  —  Liability  of  Officer. 

An  unconstitutional  statute  cannot  be  pleaded  in  justification 

of  arrest.^    The  maxim  Ignoratia  Juris  non  Excusat  in  its  appli- 

5  2  R.  C.  L.  470,  5  C.  J.  424.  Flowers,  60  Neb.  675,  84  N.  W.  81 ; 

«  100  U.  S.  371,  25  L.  ed.  717.  Bartley    ;;.    West,    29    Wise.    316; 

^  U.  S.  V.  Hart,  Pet.  (U.  S.  C.  C),  Cooley    on    Const.    Limit.,    star    p. 

390.  188;     Patterson    v.    Prior,    18    Ind. 

§  27.    1  Stanton     v.     Seymour,     5  440 ;    Kelly  v.  Bemis,  70  Mass.  83 ; 

McLean    (U.    S.),    26f ;     Scott    v.  Grotan  v.  Fresel,  20  111.  292. 

31 


§  27]  ARREST   WITHOUT   WARRANT  [Chap.  IV 

cation  to  human  affairs,  frequently  operates  harshly  and  yet  it  is 
manifest  that,  if  ignorance  of  the  law  were  a  ground  of  exemption, 
the  administration  of  justice  would  be  arrested  and  society  could 
not  exist,  for  in  every  case  ignorance  of  the  law  would  be  alleged.^ 
For  this  reason  an  officer  making  an  illegal  arrest  is  not  relieved 
from  responsibility  by  pleading  ignorance  of  the  fact  that  the 
law  under  which  the  arrest  was  made  was  invalid.^  An  unconsti- 
tutional law  is  void,  and  is  as  no  law.  An  offense  created  by  it 
is  not  a  crime.'* 

§  28.   Burden  on  Officer  to  Prove  Probable  Cause. 

Where  an  officer  without  a  warrant  undertakes  to  arrest  a 
person  on  a  charge  of  felony,  not  committed  in  his  presence,  he 
must  show,  to  relieve  himself  of  liability  for  making  the  arrest, 
that  he  acted  on  information  such  as  would  justify  a  reasonable 
man  in  believing  that  a  felony  had  been  committed  and  that  the 
particular  person  arrested  was  guilty  of  the  felony.  An  officer 
making  such  an  arrest  may  also  be  sued  on  his  official  bond.^ 
Where  an  arrest  is  made  without  a  warrant,  it  is  a  question  of 
fact  for  the  jury  to  decide  whether  there  was  reasonable  ground 
for  the  officer's  belief  that  the  person  arrested  had  committed 
a  felony.^ 

§  29.  Duty  of  Arresting  Officer  to  Take  Prisoner  without 
Delay  to  Nearest  Magistrate. 

To  afford  protection  ,to  the  officer  or  person  making  the  arrest 
the  authority  must  be  strictly  pursued  and  no  unreasonable  delay 
in  procuring  a  proper  warrant  for  the  prisoner's  detention  can  be 
excused  or  tolerated.     Any  other  rule  would  leave  the  power  open 

2  Patterson     v.     Prior,     18     Ind.  25    L.    ed.    717;     Griesedieck    Bros. 

440 ;   Campbell  v.  Sherman,  35  Wise.  Brewery  Co.  v.  Moore,  262  Fed.  582, 

103;    Deveridge  v.  Sheldon,   83  111.  585. 

390.  §  28.   1  Chandler    v.     Rutherford, 

•  Campbell  v.  Sherman,  35  Wise.  101  Fed.  775,  43  C.  C.  A.  218  (8th 
103;  Wise  v.  Withers,  3  Cranch,  Cir.) ;  Lammon  v.  Fensier,  111  U. 
331,  2  L.  ed.  457 ;    Sunner  v.  Beeler,  S.  17,  28  L.  ed.  373,  4  S.  C.  286. 

50  Mo.  341;    Sanford  v.  Nicols,   13  « Snead    v.    Bonnoil,    166    N.    Y. 

Mass.    280;     Peane    v.    Atwood,    13  325,    59    N.    E.    899;     Chandler    v. 

Mass.  324.  Rutherford,  101  Fed.  775,  43  C.  C.  A. 

*  Ex  parte  Siebold,  100  U.  S.  371,  218  (8th  Cir.). 

32 


Chap.  IV]  REWARDS    FOR   ARREST  [§  30 

to  great  abuse. ^  This  rule  was  also  enacted  by  statute,  which 
is  as  follows :  "  It  shall  be  the  duty  of  the  marshal,  his  deputy, 
or  other  officer,  who  may  arrest  a  person  charged  with  any  crime 
or  offense,  to  take  the  defendant  before  the  nearest  circuit  court 
commissioner  or  the  nearest  judicial  officer  having  jurisdiction 
under  existing  laws  for  a  hearing,  commitment,  or  taking  bail  for 
trial  and  the  officer  or  magistrate  issuing  the  warrant  shall  attach 
thereto  a  certified  copy  of  the  complaint,  and  upon  the  arrest  of 
the  accused,  the  return  of  the  warrant,  with  a  copy  of  the  com- 
plaint attached,  shall  confer  jurisdiction  upon  such  officer  as 
fully  as  if  the  complaint  had  originally  been  made  before  him, 
and  no  mileage  shall  be  allowed  any  officer  violating  the  provisions 
hereof."  -  A  failure  to  take  the  prisoner  at  once  and  without  delay 
to  the  nearest  magistrate  will  subject  the  officer  to  damages 
for  false  arrest  and  imprisonment.^  An  officer  has  no  right 
after  making  an  arrest  to  defer  the  bringing  of  the  prisoner  to  the 
nearest  magistrate  in  order  to  eat  dinner,  clean  his  clothes  or  look 
after  witnesses.^  And  even  the  magistrate  is  guilty  of  false  im- 
prisonment if,  knowing  of  an  arrest,  he  neglects  to  have  the 
prisoner  brought  before  him."^ 

§  30.   Rewards  for  Arrest. 

The  rule  in  England  and  in  this  country  is  that  it  is  contrary 
to  public  policy  for  private  individuals  to  enter  into  contracts 
with  public  officials  for  compensation  for  the  arrest  and  capture  of 
an  individual,  and  such  contract  will  not  be  enforced  by  the  courts, 
but  this  rule  does  not  apply  to  rewards  offered  by  competent  legis- 
lative or  executive  authority.^ 

§  29.    1  Leger  v.  Warren,  62  Ohio,  *  Von    Arx    v.    Shafer,    241    Fed. 

500,  57  N.  E.  506.  649  (C.  C.  A.  9th  Cir.) ;    Keefe  v. 

2  Aug.   18,    1894,   c.  301,    §  1,  28  Hart,  213  Mass.  476,  100  N.  E.  558; 

Stat.  L.  416.  Harness  v.  Steele,   159  Ind.  286,  64 

»Von    Arx   v.    Shafer,    241    Fed.  N.  E.  875;   Ocean  S.  S.  Co.  v.  WU- 

649   (C.   C.   A.   9th   Cir.) ;     Stewart  liams,  69  Ga.  251. 
V.    Feeley,    118   la.    524,    92    N.    W.  » Von    Arx    v.    Shafer,    241    Fed. 

670;     Harness    v.    Steele,    159    Ind.  649  (C.  C.  A.  9th  Cir.). 
286,  64  N.  E.  875 ;  Schoetts  t;.  Drake,  §  30.  »  United  States  v.  Matthews, 

139  Wise.  18,  120  N.  W.  393 ;   New-  173  U.  S.  381,  43  L.  ed.  738,  19  S. 

hall  V.  Egan,  28  R.  I.  584 ;    Wood  v.  C.  413. 
Olson,  117  111.  App.   128;    Snead  v. 
Bonnoil,  166  N.  Y.  325,  59  N.  E.  899. 

VOL.  1  —  3  33 


§31] 


ARREST   WITHOUT   WARRANT 


[Chap.  IV 


§  31.   Arrest  by  a  Private  Individual. 

At  common  law  any  person  could  arrest  without  warrant  one 
who  was  breaking  the  peace  in  his  presence.^  The  rule  was  the 
same  when  a  person  threatened  to  break  the  peace.^  But  a 
private  person  must  never  arrest  for  a  misdemeanor  without  a 
warrant.  A  breach  of  the  peace  is  the  one  exception.^  A  private 
person  may  arrest  without  a  warrant  one  who  commits  a  felony 
in  his  presence."*  When  not  in  his  presence  he  does  so  at  his 
peril  should  the  person  be  innocent.^  This  was  not  the  common 
law  rule  since  at  common  law  a  person  was  under  duty  to  arrest 
a  felon.^  And  this  applies  also  to  a  railroad  company.^  The 
right  to  arrest  without  a  warrant  by  a  private  individual  has  been 
relaxed  and  increased  by  statute  in  the  various  States.^  If  a 
private  individual  reasonably  believes  that  a  felony  is  to  be  com- 
mitted, he  may  arrest  without  a  warrant  in  order  to  prevent  the 
crime.^  In  order  to  justify  the  arrest  after  the  fact,  a  private 
individual  must  prove  that  a  felony  has  actually  been  committed.^" 


§  31.  1  Timothy  v.  Simpson,  6 
C.  &  P.  499;  Ross  v.  Leggett,  61 
Mich.  445,  28  N.  W.  695;  Alford 
V.  State,  8  Texas  Appeal,  545. 

2  Timothy  v.  Simpson,  6  C.  & 
P.  489;  Sloane  v.  Schomaker,  136 
Pa.  382,  20  Atl.  525 ;  Tobin  v.  Bell, 
73  App.  Div.  (N.  Y.)  41,  76  N.  Y. 
S.  425;  hut  see  Martin  v.  State,  97 
Arkansas,  212. 

'  State  V.  Lewis,  50  Ohio,  179 ; 
Palmer  v.  Maine,  Cent.  R.  Co., 
92  Maine,  399 ;  Scharsmith  y .  Knapp, 

164  N.  Y.  Suppl.  578 ;  Mingo  v.  Levy, 

165  N.  Y.  Suppl.  276. 

<  Phillips  V.  Trull,  11  Johnston 
(N.  Y.),  486;  Enright  v.  Gibson, 
219  111.  550,  76  N.  E.  689;  Bergeron 
V.  Peyton,  106  Wise.  377,  82  N.  W. 
291. 

"  Alabama  Ry.  v.  Kuhn,  78  Miss. 
114;  Gamier  v.  Squiers,  62  Kansas, 
321 ;  Martin  v.  Houck,  141  N.  C.  317. 


'  Kennedy  v.  State,  107  Indiana, 
144;  Long  v.  The  State,  12  Ga. 
293. 

^  Polousky  V.  Penn.  R.  R.  Co., 
184  Fed.  561,  106  C.  C.  A.  541 
(Lacombe,  J.,  dissenting :  false  im- 
prisonment will  not  lie,  but  only 
malicious  prosecution). 

8  The  New  York  Code  of  Crim- 
inal Procedure,  Section  183,  permits 
a  citizen  to  arrest  any  person  who 
commits  a  crime  in  his  presence. 
But  see  Caslin  v.  McCord,  116  Tenn. 
690,  94  S.  W.  79;  Russel  v.  The 
State,  37  Texas  Criminal  Repts. 
314;  Palmer  v.  Maine  C.  Ry.  Co., 
92  Maine,  399,  42  Atl.  800;  Tobin 
V.  Bell,  73  App.  Div.  41,  76  N.  Y. 
Suppl.  425. 

9  State  V.  Davis,  50  S.  C.  405, 
27  S.  E.  905. 

*"  Beckwith  v.  Philley,  6  Barn.  & 
Cr.  635. 


34 


CHAPTER  V 

VENUE 

§  32.  Constitutional  Provisions. 

§  33.  Analysis  of  the  Constitutional  Provision. 

§  34.  Legislation  on  the  Subject  —  Capital  Offenses. 

§  35.  Offenses  on  the  High  Seas. 

§  36.  Offenses  Begun  in  One  District  and  Terminated  in  Another. 

§  37.  Instances. 

§  38.  Suits  for  Penalties  and  Forfeitures. 

§  39.  Internal  Revenue  Matters. 

§  40.  Seizures  on  High  Seas. 

§  41.  Venue  in  Districts  Containing  More  Than  One  Division. 

§  42.  Venue  —  When  New  District  is  Created. 

§  43.  Enforcement  of  Awards  of  Consuls  by  Imprisonment. 

§  43  a.  Venue  for  Offenses  in  Violation  of  the  Laws  Relating  to  Indians. 

§  32.   Constitutional  Provisions. 

The  Constitution  of  the  United  States  provides  that  "  The  trial 
of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by  jury  and 
such  Trial  shall  he  held  in  the  State  where  the  said  Crimes  shall  have 
been  committed "  ^  and  that  "  In  all  criminal  prosecutions,  the 
accused  shall  enjoy  the  right  to  a  speedy  and  public  trial,  by  an  im- 
partial jury  of  the  State  and  district  wherein  the  crime  shall  have  been 
committed,  which  district  shall  have  been  previously  ascertained  by 
law.  .  ,  ."  ^  The  provisions  of  the  Sixth  Amendment  relating  to 
venue  have  reference  only  to  offenses  committed  within  a  State 
and  not  outside  of  it.^ 

§  32.   1  Article  III,  Section  2.  Jones  v.   United  States,    137  U.   S. 

2  Sixth  Amendment  to  the  Consti-  202,  34  L.  ed.  691,  11  S.  C.  80  ;  Bil- 
tution  of  the  United  States.  lingsley  v.  United  States,   178  Fed. 

3  Cook  V.  United  States,  138  U.  S.  657,  101  C.  C.  A.  465  (8th  Cir.). 
157,  34  L.  ed.  882,  24  S.  C.  605  ; 

35 


§  33]  VENUE  [Chap.  V 

§  33.  Analysis  of  the  Constitutional  Provision. 

Article  III,  Section  2,  clause  3,  providing  that  the  trial  of  the  ac- 
cused shall  be  held  in  the  State  where  the  offense  was  committed  is 
modified  by  the  Sixth  Amendment  to  the  extent  that  the  trial 
must  be  had  in  the  State  and  district  where  the  crime  was  com- 
mitted.^ The  object  of  the  constitutional  amendment  is  that  the 
defendant  shall  be  tried  in  the  locality  where  the  offense  was  com- 
mitted.^ The  provision  of  Article  III  as  to  crimes  "  not  committed 
within  any  State  "  that  "  the  trial  shall  be  at  such  place  or  places 
as  the  Congress  may  by  law  have  directed  ",  imposes  no  restriction 
as  to  the  place  of  trial  and  may  occur  at  any  place  which  shall  have 
been  designated  by  Congress  previous  to  the  trial ;  and  a  statute 
conferring  jurisdiction  on  a  court  over  a  murderer  subsequent  to 
the  murder  committed  in  Indian  Territory,  "  not  in  any  State,"  is 
no  violation  of  this  provision.^  There  is  no  principle  of  constitu- 
tional law  which  requires  one  to  be  tried  for  a  criminal  offense  in 
the  district  where  he  resides.'*  And  the  jurisdictional  requisites 
being  present,  a  warrant  for  removal  will  be  granted  bringing  the 
defendant  to  the  district  where  he  is  indicted  although  there  are 
indictments  returned  against  him  in  the  district  where  he  resides.^ 
Where  the  evidence  shows  that  the  offense  was  committed  in  a 
stated  place,  without  mentioning  the  State  or  district,  the  court 
will  take  judicial  notice  of  geography  for  the  purpose  of  ascertain- 
ing the  venue.®  A  conviction  cannot  be  obtained  where  the  evi- 
dence, so  far  as  it  showed  the  commission  of  an  offense,  indicated 
its  commission  in  districts  other  than  that  in  which  the  trial  was 
had.^  If  a  person  be  brought  within  the  jurisdiction  of  one  State 
from  another,  or  from  a  foreign  country,  by  the  unlawful  use  of 
force,  which  would  render  the  officer  liable  to  a  civil  action  or  in  a 
criminal  proceeding  because  of  the  forcible  abduction,  such  fact 
would  not  prevent  the  trial  of  the  person  thus  abducted  in  the  State 

§  33.    '  United    States    v.    Berry,  54  L.  ed.   569,  30  S.   C.   249,   251, 

24  Fed.  780,  783.  17  Ann.  Gas.  1112. 

2  Beavers   v.    Henkel,    194   U.    S.  ^  In  re  Tillinghast,  233  Fed.  712. 

83,  48  L.  ed.  882,  24  S.  C.  605.  «  Gold.stein  v.  United  States,  256 

'  Cook  V.   United  States,    138  U.  Fed.  813  (7th  Cir.). 
S.    157,   34    L.    ed.    90G,    11    S.    C.  'Vernon    v.    United  States,    146 

208.  Fed.    121,    76    C.    C.    A.    547    (8th 

*  Haas  V.  Ilenkcl,  216  U.  S.  4G2,  Cir.). 

36 


Chap.  V]  OFFENSES   ON   THE   HIGH   SEAS  [§  35 

wherein  he  had  committed  an  offense.^  Venue  may  be  proved  by 
circumstantial  evidence.^  Under  the  constitutional  provision, 
the  venue  is  as  material  as  any  other  allegation  in  the  indictment, 
and  the  burden  to  prove  it  rests  upon  the  government.^*^  Where 
the  proof  of  the  bribery  charged  in  the  indictment  may  be  presumed 
from  the  evidence  in  the  case,  the  presumption  of  the  venue  may 
not  be  predicated  on  the  first  presumption.^^ 

§  34.  Legislation  on  the  Subject  —  Capital  Offenses. 

Section  40  of  the  Federal  Judicial  Code,  formerly  Section  729 
of  the  Revised  Statutes,  provides  that  "the  trial  of  off enses punish- 
able by  death  shall  be  had  in  the  county  where  the  offense  was  com- 
mitted, where  that  can  be  done  without  great  inconvenience." 
Where  it  appears  that  the  county  where  the  offense  was  committed 
was  in  revolt  and  military  law  was  in  force,  a  motion  that  the  trial 
be  had  in  that  county  will  be  denied ;  and  the  court's  decision  that 
"  great  inconvenience  "  prevented  the  trial  being  held  there  is  con- 
clusive after  verdict.^ 

§  35.   Offenses  on  the  High  Seas. 

Section  41  of  the  Federal  Judicial  Code,  formerly  Section  730 
of  the  Revised  Statutes,  provides  that  "the  trial  of  all  offenses' 
committed  upon  the  high  seas,  or  elsewhere  out  of  the  jurisdic- 
tion of  any  particular  State  or  district,  shall  be  in  the  district  where 
the  offender  is  found,  or  into  which  he  is  first  brought."  The 
offense  must  be  committed  out  of  the  jurisdiction  of  any  particular 
State  or  district.^  Acts  committed  in  such  a  place  are  within  the 
jurisdiction  of  the  Federal  courts.^  Where  the  accused  was  charged 
with  larceny  and  taken  into  custody  while  fishing  with  hook  and 

8  Adams  v.  New  York,  192  U.  S.  i»  Vernon   v.    United   States,    146 

585,  48  L.  ed.  575,  24  S.  C.  372 ;  Kerr  Fed.    121,    76    C.    C.    A.    547    (8th 

V.  Illinois,  119  U.  S.  436,  30  L.  ed.  421,  Cir.). 

7  S.  C.  225 ;  Mahon  v.  Justice,  127  U.  "  Vernon   v.    United   States,    146 

S.  700,  32  L.  ed.  283,  8  S.  C.  1204.  Fed.  121,  126,  76  C.  C.  A.  547  (8th 

s  Wharton   Criminal    Ev.    §   108;  Cir.),  citing  authorities. 

Commonwealth  v.  Costley,  118  Mass.  §  34.    ^  United     States    v.     Fries, 

2;     Bloom   v.   State,    68   Ark.    336,  3  Dall.  515,  1*L.  ed.  701. 

58  S.  W.  41 ;   State  v.  Chamberlain,  §  35.   i  United  States  v.   Newark 

89  Mo.  129,  1  S.  W.  145 ;   Vernon  v.  Meadows  Improv.  Co.,  173  Fed.  426. 

United  States,  146  Fed.  121,  76  C.  ^United  States  v.   Various   Tugs 

C.  A.  547  (8th  Cir.).  and  Scows,  225  Fed.  505,  507. 

37 


§  35]  VENUE  [Chap.  V 

line  from  a  boat  moored  to  the  pound  and  immediately  brought 
ashore  within  the  State,  the  Federal  District  Court  within  that  State 
and  district  has  jurisdiction  to  try  the  offense.^  If  the  defendant 
has  not  been  apprehended  on  the  high  seas  and  is  found  afterwards 
in  another  district,  he  is  to  be  tried  in  the  district  where  found.^ 
An  offense  committed  against  the  laws  outside  of  the  State  is  to  be 
tried  at  such  place  as  Congress  may  designate  under  this  provision.^ 
The  courts  of  the  United  States  have  jurisdiction  over  a  person 
charged  with  an  assault  committed  on  an  American  vessel  in 
Canadian  waters.^ 

§  36.  Offenses  Begun  in  One  District  and  Terminated  in  An- 
other, 

Section  42  of  the  Federal  Judicial  Code,  formerly  Section  731 
of  the  Rev.  Stat.,  provides  that  "when  any  offense  against  the 
United  States  is  begun  in  one  district  and  completed  in  another, 
it  shall  be  deemed  to  have  been  committed  in  either,  and  may  be 
dealt  with,  inquired  of,  tried,  determined  and  punished  in  either 
district,  in  the  same  manner  as  if  it  had  been  actually  and  wholly 
committed  therein."  The  object  of  this  section  was  to  provide 
that  where  a  crime  consists  of  distinctive  parts  which  have  different 
localities,  the  whole  may  be  tried  where  any  part  can  be  proved  to 
have  been  done  or  where  it  may  be  said  there  is  a  continuously 
moving  act  commencing  with  the  offender  and  hence  ultimately 
consummated  through  him,  as  the  mailing  of  a  letter,  or  where 
there  is  a  confederation  in  purpose  between  two  or  more  persons, 
its  execution  being  by  act  elsewhere,  as  in  conspiracy.^ 

§  37.   Instances. 

An  indictment  for  a  violation  of  the  national  banking  laws  of  the 
United  States  will  lie  where  any  part  of  the  transaction  was  car- 

8  Miller    v.    United    States,    242  ^  Article  3,  Sec.  2,  el.  3 ;    United 

Fed.  907,  155  C.  C.  A.  495  (3d  Cir.) ;  States  v.  Dawson,  15  How.  (U.  S.) 

Writ  of  Certiorari  denied  in  245  U.  467,   487,    14  L.  ed.   775;    Cook  v. 

S.  660,  62  L.  ed.  535,  38  S.  C.  150.  United  States,  138  U.  S.  157,  34  L. 

*  United  States  v.  Townsend,  219  ed.  906,  11  S.  C.  268. 

Fed.  761;  Kerr?;.  Shine,  136  Fed.61,  69  «  United   States   v.   Rodgers,    150 

C.  C.  A.  69  (9th  Cir.) ;  Cook  v.  United  U.  S.  249,  37  L.  ed.  1071,  14  S.  C.  109. 

States,  138  U.  S.  157,  34  L.  ed.  906,  §  36.    i  United  States  2^.  Lombardo, 

11  S.  C.  268 ;  United  States  f.  Dawson,  241  U.  S.  73,  60  L.  ed.  897,  36  S.  C. 

15  How.  (U.  S.)  467,  14  L.  ed.  775.  508. 
38 


Chap.  V]  INSTANCES  [§  37 

ried  out.^  Where  the  defendants,  charged  with  a  conspiracy  to 
illegally  obtain  coal  lands  in  Wyoming,  were  never  within  that  State 
until  long  after  the  alleged  crime  was  committed  and  had  no  corre- 
spondence with  those  of  the  defendants  that  were  in  that  State, 
but  the  facts  tended  to  show  that  the  parties  all  met  and  planned 
the  scheme  complained  of  in  New  York,  they  must  be  indicted 
and  tried  there  and  not  in  Wyoming.^  A  prosecution  under  the 
Pure  Food  and  Drugs  Law  should  be  had  in  the  district  where  the 
alleged  misbranded  article  is  started  in  motion  on  its  way  in  inter- 
state commerce,  e.g.,  at  the  point  where  it  is  delivered  to  a  steam- 
ship company  for  transportation.  The  rule  that  applies  in  civil 
cases  that  a  corporation  must  be  sued  in  the  district  where  it  has 
its  principal  place  of  business  has  no  application  to  criminal  prose- 
cutions.^ Likewise,  prosecutions  for  conspiracy  may  be  maintained 
either  in  the  district  in  which  the  conspiracy  was  entered  into  or 
in  any  district  in  which  an  overt  act  was  done  to  effectuate  the 
object  of  the  conspiracy.^  Some  courts  hold  that  the  crime  charged 
does  not  require  the  defendant's  presence  in  the  locus  in  quo.^ 
Transportation  of  merchandise  by  a  carrier  for  less  than  the 
published  rate  is  a  single  continuing  offense,  continuously  com- 
mitted in  each  district  through  which  the  transportation  is  con- 
ducted at  the  prohibited  rate  and  is  not  a  series  of  separate  offenses, 
and  the  provision  in  the  law  making  such  an  offense  triable  in  any 
of  those  districts  confers  jiu'isdiction  on  the  court  therein,  and  does 
not  violate  Section  2  of  Article  III,  or  the  Sixth  Amendment, 
providing  that  the  accused  shall  be  tried  in  the  State  and  district 
where  the  crime  was  committed.^  Violations  of  the  Elkins  Act, 
where  goods  are  transported  through  a  series  of  States,  were  held  to 
be  a  single  offense  continuously  committed  in  each  district  and  not 
a  series  of  offenses.^    If  the  goods  are  illegally  sent  into  a  State 

§  37.   1  Simpson  v.  United  States,  C.    682 ;     Tillinghast    v.    Richards, 

229  Fed.  940  (C.  C.  A.  9th  Cir.).  225  Fed.  226. 

2  Ireland    v.    Henkle,     179    Fed.  ^  Ex  parte  Montgomery,  244  Fed. 

993.  967. 

'  United   States   v.   Hopkins,    199  '  Armour  Packing  Co.  v.  United 

Fed.  649.  States,  209  U.  S.  56,  52  L.  ed.  681, 

*  Hyde  v.  United  States,  225  U.  28  S.  C.  428 ;   Hyde  v.  United  States, 

S.  347,  56  L.  ed.  1114,  32  S.  C.  793;  225  U.  S.  347,  364,  56  L.  ed.  1114, 

United    States    v.    Rabinovich,    238  32  S.  C.  793. 
U.  S.  78,  86,  59  L.  ed.  1211,  35  S.  ^  Armour  Packing  Co.  v.  United 

39 


§  37]  VENUE  [Chap.  V 

from  a  foreign  country,  the  Federal  court  of  that  State  has  jurisdic- 
tion.^ A  prosecution  under  the  Act  of  February  4,  1887,  as 
amended  by  the  Act  of  June  18,  1910,  for  false  billing,  may  when 
committed  by  the  consignee  be  prosecuted  in  the  district  where  the 
place  of  destination  is  situated.^  An  indictment  under  the  Inter- 
state Commerce  Act  and  und^r  the  Elkins  Act  for  the  failure  of  a 
common  carrier  to  file  and  publish  its  rates  with  the  Interstate 
Commerce  Commission  must  be  found  and  tried  in  the  District 
of  Columbia  and  not  in  the  district  where  the  rates  are  to  be 
effective. ^°  A  prosecution  for  illegally  importing  a  female  from  a 
foreign  country  for  the  purposes  of  prostitution  should  be  conducted 
in  the  district  where  the  foreigner  first  set  foot  on  American  soil. 
The  crime  is  committed  at  that  point  and  a  prosecution  may  not  be 
conducted  in  whatever  district  the  foreigner  may  wander.^^  Where 
the  offense  consists  in  a  communication  sent  through  the  mails, 
the  sender  can  be  tried  at  the  place  where  he  mailed  the  letter,  or 
where  the  letter  is  received. ^^  False  impersonation  of  an  officer  of 
the  United  States  over  the  telephone  may  be  prosecuted  in  either 
district. ^^  The  circulation  of  a  libel  in  a  federal  reservation  is  not 
punishable  by  the  laws  of  the  United  States,  but  by  the  laws  of 
the  State. ^"*  In  prosecutions  under  the  Bankruptcy  Act,  for  con- 
cealing assets  from  the  trustee,  the  venue  is  in  the  district  where 
the  property  was  located  at  the  time  of  concealment.^^ 

§  38.   Suits  for  Penalties  and  Forfeitures. 

Section  43  of  the  Federal  Judicial  Code,  formerly  Section  732 
of  the  Revised  Statutes,  provides  that  "  all  pecuniary  penalties  and 

States,  209  U.  S.  5G,  52  L.  ed.  681,  '=  In  re  Palliser,    136  U.  S.  257, 

28  S.  C.  428 ;   United  States  v.  Free-  34  L.  ed.  514,  10  S.  C.  1034 ;  Burton 

man,  239  U.  S.  117,  60  L.  ed.  172,  v.    United    States,    202    U.    S.    344, 

36  S.  C.  32.  50  L.  ed.  1057,  26  S.  C.  688. 

8  United  States  v.  Union  Mfg.  Co.,  "  Lamar    v.    United    States,    240 

240  U.  S.  605,  610,  60  L.  ed.  822.  U.  S.  60,  60  L.  ed.  526,  36  S.   C. 

•United    States    v.    Union    Mfg.  255. 
Co.,  240  U.  S.  605,  60  L.  ed.  822.  ^^  United    States    v.    Press    Pub- 

'»  New  York  Central  &  II.  R.  R.  lishing  Co.,  219  U.  S.  1,  55  L.  ed. 

Co.  V.  United  States,  1G()  Fed.  267,  65,  31  S.  C.  212. 
92  C.  C.  A.  331  (2d  Cir.).  i*  Grcisch  v.   United   States,   231 

"  Ex  parte  Lair,  177  Fed.  789,  794 ;  Fed.  57,  145  C.  C.  A.  245  (3d  Cir.). 
United  States  v.  Krsteff,  185  Fed.  201. 
40 


Chap.  V]  SEIZURES  ON  HIGH  SEAS  [§  40 

forfeitures  may  be  sued  for  and  recovered  either  in  the  district 
where  they  accrue  or  in  the  district  where  the  offender  is  found." 
The  rules  governing  Sections  40  and  41  of  the  Federal  Judicial 
Code  are  applicable  to  this  section.^ 

§  39.   Internal  Revenue  Matters. 

Section  44,  Federal  Judicial  Code,  holds  that  suits  for  the  re- 
covery of  internal  revenue  taxes  may  be  brought  in  the  district 
where  the  liability  for  such  tax  occurs  or  in  the  district  where  the 
delinquent  resides.^ 

§  40.    Seizures  on  High  Seas. 

Section  45  of  the  Federal  Judicial  Code  provides  that  proceedings 
on  seizures  made  on  the  high  seas  for  forfeitures  under  any  law  of 
the  United  States,  may  be  prosecuted  in  any  district  into  which 
the  property  so  seized  is  brought ;  ^  a  seizure  made  within  any  dis- 
trict shall  be  prosecuted  in  the  district  -  where  the  seizure  is  made. 
Section  46  of  the  Federal  Judicial  Code  provides  that  proceedings 
for  the  condemnation  of  any  property^  captured  on  the  high  seas,  or 
out  of  the  limits  of  any  judicial  district,  or  within  any  district 
on  account  of  its  being  purchased  or  acquired,  sold  or  given,  with 
intent  to  use  the  same  in  abetting  or  promoting  any  insurrection 
against  the  Government  of  the  United  States,  or  knowingly  so 
used  by  the  owner  thereof,  or  with  his  consent,  may  be  prosecuted 
in  any  district  where  the  same  may  be  seized,  or  into  which  it 
may  be  taken.  Section  47  of  the  Federal  Judicial  Code  holds  that 
proceedings  on  seizures  for  forfeitures  of  any  vessel  or  cargo 
entering  any  port  of  entry  which  has  been  closed  by  the  President 
in  pursuance  of  law,  or  of  goods  or  chattels  coming  from  a  State  or 
section  proclaimed  to  be  in  insurrection  into  other  ports  of  the 
United  States,  may  be  prosecuted  in  any  district  into  which  the 
property  so  seized  may  be  taken. 

§  38.   1  Lees     v.     United     States,  208  U.  S.  333,  52  L.  ed.  517,  28  S. 

150  U.  S.  476,  37  L.  ed.   1150,   14  C.  417. 
S.  C.  163.  2  Ex  parte  Cooper,  143  U.  S.  472, 

§  39.   1  East  Tenn.  V.  &  G.  R.  Co.  36  L.  ed.  232,  12  S.  C.  453. 
V.  Atlanta  &  F.  R.  Co.,  49  Fed.  608.  >  Union  Ins.  Co.  v.  United  States, 

§  40.   1  United   States   v.    Larkin,  6  WaU.  759,  18  L.  ed.  879. 

41 


§  41]  VENUE  [Chap.  V 

§  41.   Venue  in  Districts  Containing  More  Than  One  Division. 

Section  53  of  the  Federal  Judicial  Code  provides  that  "All 
prosecutions  for  crimes  or  offenses  shall  be  had  within  the  division 
of  such  districts  where  the  same  were  committed,  unless  the  court, 
or  the  judge  thereof,  upon  the  application  of  the  defendant,  shall 
order  the  cause  to  be  transferred  for  prosecution  to  another  division 
of  the  district.  When  a  transfer  is  ordered  by  the  court  or  judge, 
all  the  papers  in  the  case,  or  certified  copies  thereof,  shall  be  trans- 
mitted by  the  clerk,  under  the  seal  of  the  court,  to  the  division  to 
which  the  cause  is  so  ordered  transferred;  and  thereupon  the 
cause  shall  be  proceeded  with  in  said  division  in  the  same  manner 
as  if  the  offense  had  been  committed  therein."  Prior  to  the  enact- 
ment of  this  section  an  indictment  could  be  found  in  a  division  in 
a  State  other  than  that  in  which  the  offense  was  committed, 
where  it  was  both  more  convenient  to  the  government  and  the 
witnesses  and  in  no  way  unfair  to  the  accused.^  A  suit  under  a 
statute  against  the  importation  of  labor  may  be  brought  in  the 
district  where  the  alien  was  to  perform  labor.^  The  scope  of  this 
section  includes  both  civil  and  criminal  cases.^  The  terms  of  this 
section  can  apply  only  to  suits  brought  in  the  district  where  the 
defendant  resides.^  It  was  recently  held  that  proceedings  before 
a  grand  jury  do  not  come  within  the  meaning  of  the  word  "  prose- 
cutions" as  used  in  said  Section  53,  and  that  an  indictment  found 
in  a  division  other  than  that  in  which  the  offense  was  charged 
may  be  transferred  for  trial  to  the  proper  division.^ 

§  42.   Venue  When  New  District  Is  Created. 

Section  59  of  Federal  Judicial  Code  provides  that  "  Whenever 
any  new  district  or  division  has  been  or  shall  be  established,  or 
any  county  or  territory  has  been  or  shall  be  transferred  from  one 
district  or  division  to  another  district  or  division,  prosecution  for 
crimes  and  offenses  committed  within  such  district,  division,  county 
or  territory  prior  to  such  transfer,  shall  be  commenced  and  pro- 
ceeded with  the  same  as  if  such  new  district  or  division  had  not 

§  41.   »  United    States    v.    Chen-  ••  Reich  v.  Tcnn.  Copper  Co.,  209 

nault,  230  Fed.  942.  Fed.  880. 

2  Tomkins  v.  Patcrson,  238  Fed.  879.  ^  Biggorstaff  v.  United  States,  260 

'  United     States     v.     Sutherland,  Fed.  92G  (C.  C.  A.  8th  Cir.). 

214  Fed.  320. 
42 


Chap.  V]  CREATION    OF    NEW   DISTRICTS  [§  43 

been  created,  or  such  county  or  territory  had  not  been  transferred, 
unless  the  court,  upon  appUcation  of  the  defendant,  shall  order  the 
cause  to  be  removed  to  the  new  district  or  division  for  trial  civil 
actions  pending  at  the  time  of  the  creation  of  any  such  district  or 
division,  or  the  transfer  of  any  such  county  or  territory,  and  arising 
within  the  district  or  division  so  created  or  the  county  or  territory 
so  transferred,  shall  be  tried  in  the  district  or  division  as  it  existed 
at  the  time  of  the  institution  of  the  action,  or  in  the  district  or 
division  so  created,  or  to  which  the  county  or  territory  is  or  shall 
be  so  transferred,  as  may  be  agreed  upon  by  the  parties,  or  as 
the  court  shall  direct.  The  transfer  of  such  prosecutions  and  ac- 
tions shall  be  made  in  the  manner  provided  in  the  section  last 
preceding." 

§  43.   Enforcement  of  Awards  of  Consuls  by  Imprisonment. 

Section  271  of  the  Federal  Judicial  Code  provides  that  "  The 
district  courts  and  United  States  commissioners  shall  have  power 
to  carry  into  effect,  according  to  the  true  intent  and  meaning 
thereof,  the  award  or  arbitration  or  decree  of  any  consul,  vice  con- 
sul or  commercial  agent  of  any  foreign  nation,  made  or  rendered 
by  virtue  of  authority  conferred  on  him  as  such  consul,  vice 
consul,  or  commercial  agent,  to  sit  as  judge  or  arbitrator  in  such 
differences  as  may  arise  between  the  captains  and  crews  of  the 
vessels  belonging  to  the  nation  whose  interests  are  committed  to 
his  charge,  application  for  the  exercise  of  such  power  being  first 
made  to  such  court  or  commissioner,  by  petition  of  such  consul, 
vice  consul  or  commercial  agent.  And  said  courts  and  commis- 
sioners may  issue  all  proper  remedial  process,  mesne  and  final,  to 
carry  into  full  effect  such  award,  arbitration  or  decree,  and  to  en- 
force obedience  thereto  by  imprisonment  in  the  jail  or  other  place 
of  confinement  in  the  district  in  which  the  United  States  may 
lawfully  imprison  any  person  arrested  under  the  authority  of  the 
United  States,  until  such  award,  arbitration  or  decree  is  complied 
with,  or  the  parties  are  otherwise  discharged  therefrom,  by  the 
consent  in  writing  of  such  consul,  vice  consul,  or  commercial  agent, 
or  his  successor  in  office  or  by  the  authority  of  the  foreign  govern- 
ment appointing  such  consul,  vice  consul,  or  commercial  agent : 
Provided  however^  That  the  expenses  of  the  said  imprisonment  and 

43 


§  43]  VENUE  [Chap.  V 

maintenance  of  the  prisoners,  and  the  cost  of  the  proceedings  shall 
be  borne  by  such  foreign  government,  or  by  its  consul,  vice  consul, 
or  commercial  agent,  requiring  such  imprisonment.  The  marshals 
of  the  United  States  shall  serve  all  such  process,  and  do  all  other 
acts  necessary  and  proper  to  carry  into  effect  the  premises,  under 
the  authority  of  the  said  courts  and  commissioners."  This  section 
embraces  all  consular  agents  whose  governments  give  them  juris- 
diction, but  the  statute  is  so  construed  as  to  hold  that  the  authority 
conferred  upon  such  consular  agents  to  sit  as  judge  or  arbitrator 
is  limited  to  authority  conferred  by  the  consent  of  the  United  States 
either  by  express  statute  or  treaty  stipulation.^ 

§  43  a.  Venue  for  Offenses  in  Violation  of  the  Laws  Relating 
to  Indians. 

"  All  complaints  for  the  arrest  of  any  person  or  persons  made  for 
violation  of  any  of  the  provisions  of  this  act  shall  be  made  in  the 
county  where  the  offense  shall  have  been  committed,  or  if  com- 
mitted upon  or  within  any  reservation  not  included  in  any  county, 
then  in  any  county  adjoining  such  reservation,  .  .  . ;  but  in  all 
cases  such  arrests  shall  be  made  before  any  United  States  court 
commissioner  residing  in  such  adjoining  county,  or  before  any 
magistrate  or  judicial  officer  authorized  by  the  laws  of  the  State 
in  which  such  reservation  is  located  to  issue  warrants  for  the  arrest 
and  examination  of  offenders  by  section  ten  hundred  and  fourteen 
of  the  Revised  Statutes  of  the  United  States.  And  all  persons  so 
arrested  shall,  unless  discharged  upon  examination,  be  held  to  an- 
swer and  stand  trial  before  the  court  of  the  United  States  having 
jurisdiction  of  the  offense."  ^ 

§43.   iln     re    Aubrey,    26   Fed.  §  43  a.   ^  Act    of    July    23,   1892, 

848.  Ch.  234,  27  Stat.  L.  261. 


44 


CHAPTER  VI 
RIGHT  TO  COUNSEL 

§  44.  Constitutional  Provisions  —  History. 

§  45.  Number  of  Counsel. 

§  46.  Not  Applicable  in  Alien  Deportation  Cases. 

§  47.  Right  of  Counsel  for  Defense  to  Confer  Privately  with  his  Witnesses. 

§  44.   Constitutional  Provisions — 'History. 

The  Sixth  Amendment  to  the  Constitution  of  the  United  States, 
among  other  things,  provides :  "  In  all  criminal  prosecutions  the 
accused  shall  .  .  .  have  the  assistance  of  counsel  for  his 
defense.  .  .  ."  The  author  of  this  work  was  unable  to  find  any 
reported  Federal  case  where  the  right  of  a  person  accused  of  crime 
to  have  the  assistance  of  counsel  has  been  either  restricted  or 
denied.  The  absence  of  such  a  case  is  the  clearest  evidence 
that  this  humane  provision  of  the  Constitution  has  been  univer- 
sally respected  by  the  Federal  judiciary.  Speaking  of  the  origin 
of  this  right  in  this  country,  Mr.  Justice  Brown,  in  Holden  v. 
Hardy  ,^  said :  "  The  earlier  practice  of  the  common  law,  which 
denied  the  benefit  of  witnesses  to  a  person  accused  of  felony,  has 
been  abolished  by  statute,  though  so  far  as  it  deprived  him  of  the 
assistance  of  counsel  and  compulsory  process  and  for  the  attend- 
ance of  his  witnesses,  it  had  not  been  changed  in  England.  But 
to  the  credit  of  her  American  Colonies  let  it  be  said,  that  so  oppres- 
sive a  doctrine  had  never  obtained  a  foot-hold  there.  .  .  ." 

§  45.  Number  of  Counsel. 

A  judge  may  appoint  as  many  attorneys  as  he  deems  necessary 
to  defend  a  person  unable  to  employ  counsel.^  The  number  of 
attorneys  necessary  is  discretionary  with  the  trial  judge.      An 

§  44.   1  169  U.  S.  366,  42  L.  ed.  §  45.   i  Gordon  v.   Commissioners 

780,  18  S.  C.  383.  '  of  Dearborn  County,  52  Ind.  322. 

45 


§  45]  RIGHT  TO   COUNSEL  [Chap.  VI 

Appellate  Court  will  reverse  only  when  it  clearly  appears  that 
the  trial  judge  abused  this  discretion.^  Accordingly  in  a  case 
where  the  court  assigned  an  inexperienced  attorney  to  defend 
the  accused  but  later  supplied  him  with  a  lawyer  of  ability,  it  was 
held  that  the  defendant  had  the  benefit  of  counsel  within  the 
meaning  of  the  Constitution.^  The  number  of  counsel  allowed  for 
a  prosecution  necessarily  varies.  In  one  case,  only  two  counsel 
were  allowed.*  The  appointment  of  four  counsel  was  held  to  be 
improper,  but  not  ground  for  reversal.^  In  one  case  where  the 
defendant  had  four  attorneys  representing  him,  the  prosecuting 
attorney  was  allowed  five  assistants.^ 

§  46.  Not  Applicable  in  Alien  Deportation  Cases. 

The  right  to  appear  by  counsel  in  criminal  proceedings  was 
held  not  to  apply  to  proceedings  seeking  the  deportation  of  an 
alien ;  but  the  court  intimated  that  in  such  a  proceeding,  where 
the  counsel  for  a  prisoner  seasonably  requests  the  privilege  of 
conferring  with  him  before  the  trial  and  of  being  present  during 
the  taking  of  evidence,  the  refusal  of  that  request  puts  upon  the 
ofiicial  so  acting  a  great  burden  of  explanation  and  of  scrupulous 
regard  for  the  prisoner's  rights.^  It  was  also  held  that  aliens 
about  to  be  deported  have  not  a  positive  right  to  counsel  on  appeal 
to  the  Commissioner  of  Labor .^ 

§  47.  Right  of  Counsel  for  Defense  to  Confer  Privately  with 
His  Witnesses. 

There  seems  to  be  no  reported  Federal  case  on  the  question 
whether  counsel  for  the  defendant  in  a  criminal  case  has  the  right 
to  confer  privately  with  his  witnesses  before  the  trial.  The  few 
decisions  of  the  State  Courts  on  this  question  are  not  entirely 
unanimous,  although  the  great  majority  decides  the  question  in 

2  Keyes  v.  The  State,  122  Ind.  527.  §  46.   >  Ex   parte  Chin  Loy  You, 

>  Simmons  v.  The  State,  116  Ga.  223  Fed.  833 ;  followed,  in  Ex  parte 

583,  42  S.  E.  779.  Lalime,    244    Fed.    279 ;     Ex   parte 

« Commonwealth    v.    Knapp,    26  Lam  Pui,  217  Fed.  456;   Jeung  Bow 

Mass.  496.  v.  United  States,  228  Fed.  868  (C. 

'•  State  V.  Griffin,  87  Mo.  608.  C.  A.  2d  Cir.). 

« Thalheim  v.  State,  38  Fla.  169,  ^  Ex  parte  Chin  Quock  Wah,  224 

20  So.  938.  Fed.  138. 
46 


Chap.  VI]    RIGHT  TO  PRIVATE  CONFERENCE  WITH  WITNESSES     [§  47 

the  aflBrmative.^  The  Congress  of  the  United  States  in  Section 
1034  of  the  Revised  Statutes,  made  special  provision  for  counsel 
and  witnesses  for  persons  indicted  for  capital  crimes.  The 
statute  reads^  as  follows :  "  Every  person  who  is  indicted  of 
treason  or  other  capital  crime,  shall  be  allowed  to  make  his  full 
defense  by  counsel  learned  in  the  law ;  and  the  court  before  which 
he  is  tried,  or  some  judge  thereof,  shall  immediately,  upon  his 
request,  assign  to  him  such  counsel,  not  exceeding  two,  as  he  may 
desire,  and  they  shall  have  free  access  to  him  at  all  seasonable 
hours.  He  shall  be  allowed,  in  his  defense,  to  make  any  proof 
that  he  can  produce  by  lawful  witnesses,  and  have  the  like  process 
of  the  court  to  compel  his  witnesses  to  appear  at  his  trial,  as  is 
usually  granted  to  compel  witnesses  to  appear  on  behalf  of  the 
prosecution."  Such  witnesses  as  the  accused  may  desire  must  be 
summoned  at  the  expense  of  the  government,  if  the  accused  can 
show  that  he  is  financially  unable  to  summon  them.^  The  defend- 
ant's right  to  counsel  is  equally  as  absolute  as  is  his  right  to  compel 
the  attendance  of  witnesses.  If  the  court  assigns  the  accused  a 
counselor  and  later  it  develops  that  the  accused  is  unable  to  meet 
the  attorney's  demand  for  fees,  the  government  is  under  no 
obligation  to  the  counselor  to  pay  his  fee.^  The  right  of  the 
accused  to  compel  witnesses  to  appear  in  his  behalf  is  practically 
universal  in  its  application,  having  but  one  exception.  It  does  not 
extend  to  foreign  ambassadors  or  consuls,  who  by  the  rules  of 
international  law  or  express  treaty  are  not  amenable  to  the 
processes  of  the  courts,  and  Section  25  of  the  Act  of  Congress, 
April  30th,  1790  (1  Stat.  118),  specifically  exempts  ambassadors 
from  the  jurisdiction  of  the  courts.'^  Both  this  statute,  and  the 
provisions  of  Amendment  Six  which  correspond  thereto,  do  not 
apply   to   members   of   Congress.^     Counsel  is  assigned  by  the 

§  47.   1  State  v.  Papa,  80  Atl.  12,  ^  Nabb  v.  United  States,  1  Court 

32  R.  I.  453 ;  Shaw  v.  State,  79  Miss.      Claims,  173. 


21;  White  v.  State,  52  Miss.  216 
Brown  v.  State,  3  Tex.  Ct.  App 
294 ;  Holt  v.  State,  9  Tex.  Ct.  App 
£71;   Hudson  v.   State,  44  Tex.  Cr 


4  In  re  Dillon,  7  Fed.  Cas.  No.  710. 

^  United  States  v.  Cooper,  25 
Fed.  Cas.  No.  626  (members  of  the 
President's  Cabinet) ;  United  States  v. 


251.  Smith,  27  Fed.  Cas.  No.  1192  (and  to 

2  United  States  v.^  Kenneally,  26      County  Court  Judges) ;  United  States 
Fed.  Cas.  No.  760.  v.  Caldwell,  25  Fed.  Cas.  No.  238. 

47 


§  47]  RIGHT   TO    COUNSEL  [ChAP.  VI 

court  only  at  the  request  of  the  accused.^  The  right  to  counsel 
as  guaranteed  by  the  Sixth  Amendment  to  the  Constitution  of 
the  United  States  applies  exclusively  to  the  powers  exercised 
by  the  federal  judiciary  and  is  not  a  limitation  upon  the  powers 
of  the  State/  Where  the  trial  judge  allowed  the  accused  but 
ten  minutes  to  confer  with  counsel  just  appointed,  it  was  held 
to  be  violative  of  the  fundamental  principle  granting  the  ac- 
cused the  benefit  of  counsel.^  Judge  Cooley,  in  his  admirable 
work  on  Constitutional  Limitations,^  says :  "In  guaranteeing 
to  parties  accused  of  crime  the  right  to  the  aid  of  counsel,  the 
constitution  secures  it,  with  all  its  accustomed  incidents.  Among 
these  is  that  shield  of  protection  which  is  thrown  around  the 
confidence  the  relation  of  counsel  and  client  requires,  and  which 
does  not  permit  the  disclosure  by  the  former,  even  in  the  court  of 
justice,  of  communications  which  may  have  been  made  to  him  by 
the  latter  with  a  view  to  pending  or  anticipated  litigation.  This 
is  the  client's  privilege ;  the  counsel  cannot  waive  it,  and  the 
Court  would  not  permit  the  disclosure  even  if  the  client  were  not 
present  to  take  the  objection."  And  the  attorney  will  be  pro- 
tected in  his  rights  to  fully  and  properly  preserve  and  protect  the 
rights  of  his  client. ^° 

estate    V.    Sims,    117    La.    1036,  ^  Star,  p.  334. 

42  So.  494 ;    Korf  v.  Jasper  County,  i"  In  re  Sachs,  190  U.  S.  1,  47  L. 

132  la.  682,  108  N.  W.  1031.  ed.  933,  23  S.  C.  718;  Ex  parte  Gar- 

'  State  V.   Murphy,   87   N.   J.   L.  land,  71  U.  S.  333,  379,   18  L.  ed. 

515,  530,  94  Atl.  640.  366. 

sReliford  v.  State,   140  Ga.  777, 
79  S.  E.  1128. 


48 


CHAPTER  VII 
ARREST  ON  WARRANT 

§  48.  Constitutional  Requisite  —  History  —  Probable  Cause. 

§  49.  Congressional  Legislation. 

§  50.  General  Warrants  Prohibited  —  Description. 

§51.  Must  Designate  Cause  of  Arrest. 

§  52.  Who  May  Apply  for  Warrant. 

§  53.  United  States  Attorney  May  not  Revoke  Warrant. 

§  54.  Recitals  in  Warrant  not  Conclusive. 

§  55.  Privilege  from  Arrest. 

§  56.  Complaints  and  Informations  —  Jurisdictional  Requirements. 

§  57.  Rule  Announced  by  Mr.  Justice  Bradley. 

§58.  Quality  of  Proof . 

§  59.  Effect  of  Failure  to  Observe  Constitutional  Requirement. 

§  60.  Notary  Cannot  Take  Oath. 

§  61.  Liability  of  Magistrate  and  Officer  for  Causing  Illegal  Arrest. 

§  62.  No  Verification  Required  Wliere  no  Warrant  Is  Demanded. 

§  48.   Constitutional  Requisite  —  History  —  Probable  Cause. 

The  Fourth  Amendment  to  the  Constitution  of  the  United  States 
provides  :  "  No  warrant  shall  issue  but  upon  probable  cause  sup- 
ported by  oath  or  affirmation."  In  a  recent  case/  Judge  Henry- 
Wade  Rogers  of  the  United  States  Circuit  Court  of  Appeals,  for 
the  Second  Circuit,  traces  with  considerable  care  the  history  of 
prosecutions  by  information.  According  to  Judge  Rogers,  pro- 
ceedings by  information  were  unpopular  in  England  and  to  some 
extent  in  the  American  Colonies,  but  they  have  never  been  abol- 
ished in  England,  although  in  some  of  our  States  this  has  been  done ; 
that,  at  the  time  of  the  Declaration  of  Independence,  it  was  a 
familiar  mode  of  criminal  procedure  in  all  the  Colonies.  A  very 
oppressive  use  was  made  of  them  for  something  more  than  a  cen- 

§  48.   1  Weeks  v.  United  States,  216  Fed.  292,  132  C.  C.  A.  436  (2d  Cir.). 
VOL.  I  —  4  49 


§  48]  ARREST   ON    WARRANT  [Chap.  VII 

tury  in  the  practice  before  the  Court  of  Star  Chamber.  When  the 
Court  of  Star  Chamber  was  aboUshed,  a  strong  prejudice  existed 
against  proceedings  by  information  and  it  was  contended  that  such 
procedure,  was  illegal,  but  this  contention  was  denied.  The  un- 
popularity of  informations  was  not  restricted  to  the  mother  coun- 
try, but  existed  to  some  extent  in  this  country.  Prosecutions  by 
information  are  as  ancient  as  the  common  law  itself.  In  the  early 
years  of  the  Federal  Government,  informations  were  principally 
used  for  the  recovery  of  fines  and  forfeitures.  Judge  Rogers  ar- 
rives at  the  conclusion  that  the  weight  of  authority  in  this  country 
is  to  the  effect  that  informations  used  by  the  prosecuting  officers 
are  the  informations  used  by  the  attorney-general  in  England  and 
not  those  used  by  Masters  of  the  Crown  and  which  are  governed 
by  IV.  and  V.  William  and  Mary,  C.  18,  and,  inasmuch  as  under 
the  common  law  informations  could  be  filed  by  the  attorney-general 
simply  on  his  oath  of  office  and  without  verification,  therefore  a  veri- 
fication of  an  information  by  a  prosecuting  attorney  is  unnecessary 
unless  a  warrant  for  the  arrest  of  the  accused  is  demanded  or  un- 
less required  by  some  constitutional  or  statutory  provision. 
Judge  Rogers'  historical  statement,  which  for  reason  of  space  can- 
not be  given  in  extenso  here,  well  merits  a  careful  perusal  of  the  case 
cited.  The  rule  requiring  a  verification  of  complaint  or  information 
applies  in  any  case  where  an  application  for  the  issuance  of  a  war- 
rant of  arrest  is  made.^  It  was  therefore  held  that  an  information 
for  a  violation  of  the  Pure  Food  and  Drug  Act,  where  a  warrant 
of  arrest  is  sought,  must  be  supported  by  the  oath  of  some  one 
having  knowledge  of  the  facts  showing  probable  cause;  the  sig- 
nature alone  of  the  district  attorney  not  being  sufficient.^  The 
Fourth  Amendment  to  the  Constitution  of  the  United  States 
furnishes  the  citizen  the  nearest  practicable  safeguard  against 
malicious  accusations.  He  cannot  be  tried  on  an  information 
unless  it  is  supported  by  the  oath  of  some  one  having  knowledge 
of  the  facts  showing  the  existence  of  probable  cause .^  Probable 
cause  must  be  shown  by  the  facts  alleged.    The  conclusion  from 

2  Weeks    v.    United    States,    216  » United  States  v.  Wells,  225  Fed. 

Fed.  292,  at  300,  1.32  C.  C.  A.  436  320. 

(2d  Cir.);    United  States  v.  Polite,  « United   States  v.    Morgan,   222 

35  Fed.  58.  U.  S.  274,  56  L.  ed.  198,  32  S.  C.  81. 

50 


Chap.  VII]     GENERAL  WARRANTS  PROHIBITED  —  DESCRIPTION      [§  50 

the  averments  of  facts  must  be  that  of  the  magistrate,  and  not  the 
opinion  of  the  affiant.^ 

§  49.   Congressional  Legislation. 

Section  1014  of  the  Revised  Statutes  of  the  United  States  is  as 
follows :  "Arrest  and  removal  for  trial.  For  any  crime  or  offense 
against  the  United  States,  the  offender  may,  by  any  justice  or 
judge  of  the  United  States,  or  by  any  commissioner  of  a  circuit 
court  to  take  bail,  or  by  any  chancellor,  judge  of  a  supreme  or 
superior  court,  chief  or  first  judge  of  common  pleas,  mayor  of  ,a 
city,  justice  of  the  peace,  or  other  magistrate,  of  any  State  where  he 
may  be  found,  and  agreeably  to  the  usual  mode  of  process  against 
offenders  in  such  State,  and  at  the  expense  of  the  United  States, 
be  arrested  and  imprisoned,  or  bailed,  as  the  case  may  be,  for  trial 
before  such  court  of  the  United  States  as  by  law  has  cognizance  of 
the  offense.  Copies  of  the  process  shall  be  returned  as  speedily 
as  may  be  into  the  clerk's  office  of  such  court,  together  with  the 
recognizance  of  the  witnesses  for  their  appearance  to  testify  in 
the  case.  And  where  any  offender  or  witness  is  committed  in  any 
district  other  than  that  where  the  offense  is  to  be  tried,  it  shall 
be  the  duty  of  the  judge  of  the  district  where  such  offender  or 
witness  is  imprisoned,  seasonably  to  issue,  and  of  the  marshal  to 
execute,  a  warrant  for  his  removal  to  the  district  where  the  trial  is 
to  be  had." 

§  50.   General  Warrants  Prohibited  —  Description. 

By  the  common  law,  a  warrant  for  the  arrest  of  a  person  charged 
with  crime  must  truly  name  him,  or  describe  him,  sufficiently 
to  identify  him.  If  it  does  not,  the  officer  making  the  arrest 
is  liable  to  an  action  for  false  imprisonment,  and  this  principle 
of  the  common  law  has  been  retained  in  the  Constitution.^ 
The  provision  of  Section  1014  of  the  Revised  Statutes  of  the 
United  States  is  subordinate  to  the  declaration  of  the  Constitu- 

^  In  re  Rosenwasser  Bros.,   Inc.,  For  the  history  of  the  opposition  of 

254     Fed.     171 ;     United   States    v.  the   American   Colonists    to    general 

Tureaud,  20  Fed.  621;  United  States  warrants,  see  Opinion  of  Mr.  Justice 

V.  Baumert,  179  Fed.  735.  Bradley   in   Boyd  v.   United  States, 

§50.   iWest    V.    Cabell,    153    U.  116  U.  S.  at  pp.  624  e«  seg. 
S.  78,  38  L.  ed.  643,  14  S.  C.  752. 

51 


§  50]  ARREST    ON    WARRANT  [Chap.  VII 

tion  that  all  warrants  must  particularly  describe  the  person  to 
be  seized.^ 

§  51.  Must  Designate  Cause  of  Arrest. 

A  warrant  of  commitment  will  be  quashed  unless  it  states  on  its 
face  some  good  cause  certain,  supported  by  affidavit  establishing 
probable  cause  of  the  guilt  of  the  accused.^  In  Howard  v.  Gosset,^ 
a  carefully  considered  case,  Lord  Coleridge  stated  the  reason  for 
the  requirement  that  the  warrant  should  disclose  the  cause  of  the 
arrest  as  follows  :  "  Several  reasons  are  given,  not  the  least  impor- 
tant is,  that  the  party  called  upon  to  submit  to  the  process  of  the 
law  may  know  what  it  is  that  is  charged  against  him,  and  for  what 
it  is  that  he  is  called  upon  to  yield  himself  a  prisoner.  If  no  cause, 
or  an  insufficient  cause,  appear,  he  takes  his  measures  accordingly 
at  the  time ;  and  he  must  judge  from  the  information  communi- 
cated at  the  time.  Should  he  resist,  and  kill  or  injure  the  officer 
in  his  resistance,  and  be  brought  to  trial,  it  could  not  be  contended 
that  any  fact  could  be  added  to  the  statement  in  the  warrant  to 
his  prejudice.  The  act  with  which  he  is  charged  must  take  its 
character  from  the  circumstances  as  they  then  stood.  He  was 
resisting  a  wrongful  imprisonment,  wrongful  because  the  officer 
was  not  armed  with  a  legal  authority  for  arresting  him ;  and  that 
is  the  act  for  which  he  is  to  answer.  This  reasoning  equally  applies, 
if  he  submits  and  brings  his  action  for  damages.  Whatever 
cause  for  imprisoning  him  may  have  existed,  the  action  lies,  because 
the  imprisonment  of  which  he  complains  was  unauthorized  and 
wrongful.  As  well  might  a  new  warrant  be  subsequently  granted 
to  the  officer,  and  relied  on  by  him  as  a  defense,  as  facts  be  added 
in  the  plea  to  help  out  the  defective  warrant.  These  facts  can 
only  show  that  he  might  have  been  well  arrested,  not  that  he  was, 
which  is  the  question  at  issue.  .  .  ." 

§  52.  Who  May  Apply  for  Warrant. 

A  warrant  may  be  applied  for  to  any  judicial  officer  mentioned 
in  Section  1014  of  the  Revised  Statutes  of  the  United  States,  either 

« West  V.  Cabell,  153  U.  S.  78,  38  ^  10  Q.  B.,  Ad.  &  El.  N.   S.  359, 

L.  ed.  643,  14  S.  C.  752.  ap-proved  in  People  v.    Marendi,  213 

§  51.   >  Ex  parte  Burford,  3  Cranch  N.  Y.  608. 
(U.  S.),  448,  2  L.  ed.  495. 

52 


Chap.  VII]  COMPLAINTS   AND   INFORMATIONS  [§  56 

by  the  United  States  Attorney  or  by  any  person  making  oath  upon 
his  personal  knowledge  that  a  crime  has  been  committed  and  stating 
facts  showing  probable  cause  for  arresting  the  party  against  whom 
the  warrant  is  sought.^ 

§  53.  United  States  Attorney  May  Not  Revoke  Warrant. 

A  United  States  Attorney  has  no  power  to  direct  a  United  States 
Marshal  not  to  execute  a  warrant  issued  by  any  judicial  officer 
mentioned  in  the  above  section.  This  issuance  of  warrant  is  a 
judicial  act  and  can  only  be  revoked  by  the  judicial  officer  who 
signed  same  upon  good  cause  shown.^ 

§  54.  Recitals  in  Warrant  Not  Conclusive. 

The  warrant  of  arrest,  although  regular  on  its  face,  is  not  neces- 
sarily conclusive  evidence  that  the  prisoner  is  rightfully  deprived 
of  his  liberty  and  its  regularity  may  be  inquired  into.^ 

§  55.  Privilege  from  Arrest. 

A  Congressman  is  privileged  from  arrest  on  any  charge  except 
treason,  felony  and  breach  of  the  peace. ^  A  sentence  on  a  member 
of  Congress  while  his  privilege  continues  is  illegal  and  will  not 
become  valid  by  the  expiration  of  the  time  for  which  he  was 
elected.^  Witnesses  attending  a  hearing  in  the  Federal  Court  in  a 
criminal  case  are  exempt  from  arrest  on  a  civil  process  and  such 
action  will  constitute  contempt  of  court.^ 

§  56.  Complaints  and  Informations  — Jurisdictional  Require- 
ments. 

In  all  criminal  cases  the  complaint  must  be  sworn  to,  stating 
the  facts  upon  which  the  complaint  is  based.  If  made  on  informa- 
tion and  belief  it  must  give  the  grounds  of  belief  and  sources  of 

§  52.    1  United  States  v.   Skinner,  §  55.   '  Constitution  of  the  United 

2  Wheel.  C.  C.  232;  United  States  States,  Section  6;  Williamson  v. 
V.  Burr,  2  Wheel.  C.  C.  573;  United  United  States,  207  U.  S.  425,  52  L. 
States  V.  BoUman,   1  Cranch,  C.  C.  ed.  278,  28  S.  C.  163. 

373.     See  also  §  8  a,  supra.  ^  Williamson     v.     United     States, 

§  53.   1  United  States  v.  Scroggins,      supra. 

3  Woods  (U.  S.),  529.  '  United    States    v.    Zavelo,    177 

§  54.    1  McNichols   v.   Pease,   207      Fed.  536,  and  cases  cited. 
U.  S.  109,  52  L.  ed.  1-21,  28  S.  C.  30; 
Ex  parte  Jenkins,  2  Wall.  Jr.  521,  528. 

53 


§  56]  ARREST    ON    WARRANT  [Chap.  VII 

information.  A  complaint  on  information  and  belief  not  based 
upon  the  complainant's  personal  knowledge  confers  no  jurisdic- 
tion on  the  commissioner  to  issue  a  warrant  of  arrest.^  In  a  recent 
case,^  Judge  Augustus  N.  Hand  released  a  prisoner  on  habeas 
corpus  on  the  ground  that  the  complaint  was  fatally  defective  in 
this :  that  it  did  not  state  the  sources  of  the  affiant's  information 
although  the  complainant  promised  to  disclose  same  at  the  hear- 
ing. The  complaint  or  information  must  be  in  the  form  of  an 
affidavit  giving  a  statement  of  facts  with  that  degree  of  clearness 
and  positiveness  that  if  falsely  made  the  aflBant  may  be  held  guilty 
of  perjury.^ 

§  57.  Rule  Announced  by  Mr.  Justice  Bradley. 

The  rule  which  must  govern  all  magistrates  who  authorize 
arrests  under  the  Constitution  of  the  United  States,  as  the  founda- 
tion for  the  issuance  of  warrants,  is  uniform,  and  is  thus  stated  by 
Mr.  Justice  Bradley:^  "After  an  examination  of  the  subject,  we  have 
come  to  the  conclusion  that  such  an  affidavit  does  not  meet  the 
requirements  of  the  Constitution,  which,  by  the  Fourth  Article  of  the 
amendments,  declares  that  the  right  of  the  people  to  be  secure  in 
their  persons,  houses,  papers,  and  effects,  against  unreasonable 
searches  and  seizures,  shall  not  be  violated ;  and  that  no  warrants 
shall  issue  but  upon  probable  cause  supported  by  oath  or  affirma- 
tion describing  the  place  to  be  searched  and  the  persons  to  be  seized. 
It  is  plain  from  this  fundamental  enunciation,  as  well  as  from  the 
books  of  authority  on  criminal  matters  in  the  common  law,  that 

§  56.   ^  In  re  Rosenwasser  Bros.,  621 ;    Weeks  v.   United  States,   216 

Inc.,  254  Fed.  171;  United  States  Fed.  292,  132  C.  C.  A.  436  (2d  Cir.). 
V.   Wells,    225    Fed.    320;     Lippman  ^  United   States   v.  Ruroede,    220 

V.  People,  175  111.  101,  51  N.  E.  872;  Fed.  210. 

United  States  v.  Baumert,  179  Fed.  ^  Johnston    v.    United    States,    87 

735 ;    Beavers  v.  Henkel,   194  U.  S.  Fed.  187  (C.  C.  A.  5th  Cir.) ;  United 

73,  48  L.  ed.  882,  24  S.  C.  605 ;  John-  States  v.  Collins,  79  Fed.  65 ;    Myers 

ston  V.  United  States,  87  Fed.    187,  v.  The  People,  67  111.  503 ;    Ex  parte 

30  C.  C.  A.  612  (.5th  Cir.);    United  Dimmig,  74  Cal.  164,  15  Pac.  619; 

States   V.   Sapinkow,    90   Fed.    654;  People  v.  Heffron,  53  Mich.  527,  19 

United  States  v.  Morgan,  222  U.  S.  N.  W.  170. 

274,  56  L.  ed.  198,  32  S.  C.  81 ;  United  §  57.   ^  3  Woods,   502.     Approved 

States  t;.  Collins,  79  Fed.  65 ;  United  in  United  States  v.  Tureaud,  20  Fed. 

States    V.    Ruroede,   220    Fed.    210;  623,  and  in  Johnston  y.  United  States, 

United  States  v.  Tureaud,  20  Fed.  Fed.  187  (C.  C.  A.  5th  Cir.  87). 

54 


Chap,  VII]  NOTARY    CANNOT   TAKE    OATH  [§  60 

the  probable  cause  referred  to  and  which  must  be  supported  by 
oath  or  aflfirmation,  must  he  submitted  to  the  committing  magistrate 
hiviself,  and  not  merely  to  an  official  accuser,  so  that  he,  the  magis- 
trate, may  exercise  his  own  judgment  on  the  sufficiency  of  the 
ground  for  beheving  the  accused  person  guilty ;  and  this  ground 
must  amount  to  a  probable  cause  of  belief  or  suspicion  of  the 
party's  guilt.  In  other  words,  the  magistrate  ought  to  have 
before  him  the  oath  of  the  real  accuser,  presented  either  in  the  form 
of  an  affidavit  or  taken  down  by  himself  on  a  personal  examina- 
tion, exhibiting  the  facts  on  which  the  charge  is  based,  and  on  which 
the  belief  or  suspicion  of  guilt  is  founded." 

§  58.    Quality  of  Proof. 

The  measure  of  proof  which  is  held  to  be  requisite  by  the  courts 
of  the  United  States  under  the  Fourth  Amendment  to  the  Consti- 
tution of  the  United  States  is  such  legal  evidence  of  the  offense 
having  been  committed  by  the  defendant  as  would  warrant  a 
grand  jury  in  finding  a  true  bill  against  the  defendant.^ 

§  59.   Effect  of  Failure  to  Observe  Constitutional  Requirement. 

A  warrant  is  void  if  based  upon  a  complaint  or  information  where 
the  facts  are  stated  to  be  on  information  or  belief  without  stating 
the  sources  of  such  belief.  Such  a  warrant  is  no  protection  to  the 
persons  issuing  same.'^ 

§  60.  Notary  Cannot  Take  Oath. 

A  notary  public  has  no  authority  under  the  laws  of  the  United 
States  to  administer  any  oaths  in  connection  with  criminal  prose- 
cutions, and  an  information  or  supporting  affidavits  sworn  to  before 
a  notary  public  will  be  quashed  on  motion,  if  a  warrant  thereon 
is  issued.^  But  this  point  cannot  be  raised  for  the  first  time  on 
appeal.^    Such  a  defect  in  the  information  will  be  waived  if  the 

§  58.  »  United  States  y.Tureaud,  20  §60.   i  United    States    v.    SchaU- 

Fed.  621 ;  Ex  parte  Burford,  3  Cranch  inger  Produce  Co.,  230  Fed.  290. 
(U.  S.),  448,  2  L.  ed.  495;   United  ^  gi^pson   v.   United    States,   241 

States  V.  Baumert,  179  F.  ed.  735.  Fed.  841,  154  C.  C.  A.  543  (6th  Cir.) ; 

§  59.   1  Bryan     v.     Congdon,     86  Writ  of  Certiorari  denied  in    245  U. 

Fed.  221,  29  C.  C.  A.  670  (8th  Cir.),  S.  664,  62   L.  ed.  537,  38  S.  C.  62; 

57  U.  S.  App.  505 ;    People  v.  Berry,  Abbott   Bros.  Co.  v.  United  States, 

107  Mich.  256,  65  N.  JV.  98;  Badger  242  Fed.  751  (C.  C.  A.  7th  Cir.). 
V.  Reade,  39  Mich.  771. 

55 


§  60]  ARREST   ON   WARRANT  [Chap.  VII 

defendant  pleads  in  bar  to  the  information.  No  greater  precision 
is  required  of  an  information  than  that  required  of  an  indictment.^ 
An  information  sworn  to  before  a  notary  pubUc  will  not  be  quashed 
where  no  warrant  of  arrest  has  been  sought."* 

§  61.  Liability  of  Magistrate  and  Officer  for  Causing  Illegal 
Arrest. 

When  a  magistrate  without  authority  of  law  issues  a  warrant 
of  arrest,  both  he  and  the  person  at  whose  instance  he  so 
acts  are  liable  for  false  arrest  at  the  suit  of  the  party  illegally  ar- 
rested by  virtue  of  such  warrant.^  When  the  warrant  is  defective 
and  void  on  its  face,  the  officer  has  no  right  to  arrest  the  person  on 
whom  he  attempts  to  serve  it  and  he  thus  acts  as  a  trespasser. 
An  officer  or  any  other  person  who  acts  under  a  void  precept 
stands  on  the  same  footing.^  A  warrant  irregular  on  its  face  is  no 
protection  to  a  United  States  Marshal.^  In  some  jurisdictions 
it  has  been  held  that  an  officer  must  establish  the  absolute  regular- 
ity of  the  process.'*  But  the  better  rule  is  that  the  officer  making 
the  arrest  is  not  bound  to  look  behind  a  regular  warrant  coming 
from  a  proper  jurisdiction.^  There  is  of  course  a  clear  distinction 
between  a  complaint  utterly  void,  where  the  court  does  not  obtain 
jurisdiction,  and  that  which  is  merely  voidable.  In  the  latter  class 
of  cases  magistrates  and  officers  are  exempt  from  liability  for  mak- 
ing an  arrest  based  upon  a  mere  insufficient  complaint  on  grounds  of 
public  policy.^    A  magistrate  can  derive  no  jurisdiction  from  an 

'Simpson   v.   United    States,   241  Crim.  Law  44,  8  East,  328;    Rex  v. 

Fed.  841,  154  C.  C.  A.  543  (6th  Cir.).  Hood,    1    Mod.    c.   c.   281;    Rex   v. 

*  Abbott     Bros.     Co.     v.     United  Osner,  5  East,  304 ;    Hoye  v.  Bush, 

States,  242  Fed.  751   (C.  C.  A.  7th  2  Scott,  N.  R.  86. 
Cir.).  3  Ex  parte  Field,  9  Fed.  Cas.  No. 

§  61.    1  Strozzi  V.  Wines,  24  Nev.  4761,  5  Blatchf.  63. 
389,  57  Pac.  832;    Coffin  v.  Varila,  *  Matthews  r.  Densmore,  43  Mich. 

8  Tex.  Cir.  App.  417,  27  S.  W.  956;  461;    but  see  s.   c.   109  U.   S.   216, 

Truesdcl    v.    Combs,    33    Ohio    St.  27  L.  ed.  912,  3  S.  C.  126 ;   Howard 

186;     Gclzenleuchter    v.    Niemeyer,  v.    Manderfield,    31    Minn.    337,    17 

64  Wis.  316,  25  N.  W.  442.  N.  W.  946. 

2  Commonwealth    v.     Crotty,     10  ^  Brown    v.    Hadwin,    182    Mich. 

Allen    (Mass.),   403;    Pcarce  v.  At-  491,   148  N.  W.  093;    Matthews  v. 

wood,    13    Mass.    324;    Sanford    v.  Densmore,  109  U.  S.  216,  27  L.  ed. 

Nichner,  5  Mod.  a.  c.  286;  Common-  912,  3  S.  C.  126. 

wealth  V.  Kennard,  8  Pick.   (Mass.)  *  Brinkman   v.    Drolesbaugh,    119 

133 ;    Shadgett  t^.  Clipson,   1  Chitt.  N.  E.  451  (Ohio  St.). 

56 


Chap.  VII]  NO   VERIFICATION    WHERE    NO    WARRANT 


[§62 


unconstitutional  statute,  and  if  he  enforces  an  unconstitutional 
law,  is  liable  for  damages  to  the  aggrieved  party. ^  Trespass  lies 
for  the  enforcement  of  an  unconstitutional  statute,  or  where  the 
process  is  void.^ 

§  62.  No  Verification  Required  Where  No  Warrant  Is  De- 
manded. 

The  provision  of  the  Fourth  Amendment  requiring  an  informa- 
tion filed  by  the  district  attorney  to  be  supported  by  an  affidavit 
based  on  personal  knowledge  and  showing  probable  cause  is  not 
mandatory  where  no  warrant  of  arrest  is  issued  thereunder.^ 
Where  no  warrant  is  demanded  and  the  defendant  appears  volun- 
tarily, a  complaint  or  information  may  be  made  by  the  district 
attorney  on  his  oath  of  office,  without  verifying  the  complaint  or 
information. 2 


^  Kelly  V.  Bemis,  70  Mass.  83; 
Fisher  v.  McGirr,  1  Gray,  45 ;  Piper 
V.  Pearson,  2  Gray,  120;  Clarke 
V.  May,  2  Gray,  410;  Ex  parte 
Siebold,  100  U.  S.  371,  25  L.  ed.  717. 
And  see  §  27. 

*  McClaughry  v.  Cratzenberg,  39 
111.  118;  Johnson  v.  Von  Kettler, 
66  111.  63 ;  Stanton  v.  Seymor,  5 
McLean  (C.  C),  267;  Allen  v. 
Greenlee,  2  Dev.  (N.  C.)  370 ;  Price 
V.  Graham,  3  Jones  (N.  C),  545; 
Morris  v.  Scott,  21  Wend.  (N.  Y.) 
281. 


§62.  1  Weeks  v.  United  States, 
216  Fed.  292,  132  C.  C.  A.  436 
(2d  Cir.) ;  Abbott  Bros.  Co.  v.  United 
States,  242  Fed.  751  (C.  C.  A.  7th 
Cir.). 

2  Weeks  v.  United  States,  216 
Fed.  292,  132  C.  C.  A.  436  (2d  Cir.) ; 
Kelly  V.  United  States,  250  Fed. 
947  (C.  C.  A.  9th  Cir.),  39  S.  C. 
182;  United  States  v.  Simon,  248 
Fed.  980;  Abbott  Bros.  v.  United 
States,  242  Fed.  751  (C.  C.  A.  7th 
Cir.) ;  United  States  v.  Adams  Ex- 
press Co.,  230  Fed.  531. 


57 


CHAPTER  VIII 
SPEEDY  AND  PUBLIC  TRIAL 

§63.  Speedy  Trial. 

§  64.   The  Trial  Must  Be  Public. 

§  63.   Speedy  Trial. 

The  Sixth  Amendment  to  the  Constitution  of  the  United  States 
provides  "  in  all  criminal  prosecutions,  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial."  This  provision  has  no 
application  to  the  order  of  trials  in  point  of  time  of  commission 
of  the  offense  where  the  accused  stands  charged  with  more  than 
one  offense  on  several  indictments.  This  provision  merely  means 
that  a  defendant  is  entitled  to  a  speedy  trial  after  the  com- 
mencement of  the  action  and  by  a  jury  of  the  district  where 
it  is  alleged  the  offense  was  committed.^  A  defendant  cannot 
acquiesce  in  the  postponement  of  his  trial  and  then,  when  it  is 
called,  move  that  the  case  be  dismissed  because  he  had  not 
been  given  a  speedy  trial.  It  is  his  duty,  if  he  wants  a  speedy 
trial,  to  ask  for  it.^ 

§  64.   The  Trial  Must  Be  Public. 

The  Sixth  Amendment  to  the  Constitution  provides  that  "  in 
all  criminal  prosecutions  the  accused  shall  enjoy  the  right  to 
a  .  .  .  public  trial."  It  has  been  held  that  an  order  of  the 
trial  Judge  to  clear  the  court  room  of  all  spectators,  except  rela- 
tives of  the  defendants,  members  of  the  bar  and  newspaper 
reporters,  was  a  violation  of  the  constitutional  rights  of  the 
accused  to  a  public  trial  and  constituted  reversible  error.^    A 

§  63.   1  Beavers   v.    Haubert,    198  §  64.   i  Davis    v.    United    States, 

U.  S.  77,  40  L.  ed.  950,  25  S.  C.  573.      247  Fed.  394  (C.  C.  A.  8th  Cir.). 

2Phinip.s    V.    United    States,    201 
Fed.  259  (C.  C.  A.  8th  Cir.). 

58 


Chap.  VIII]  THE   TRIAL   MUST   BE    PUBLIC  [§  64 

contrary  conclusion  was  reached  by  the  United  States  Circuit 
Court  of  Appeals  for  the  9th  Circuit  -  where  it  was  held  that  a 
defendant  was  not  deprived  of  a  public  trial  by  an  order  clearing 
the  court  room  of  spectators,  but  permitting  all  persons  connected 
with  the  court  either  as  officers  or  members  of  the  bar,  and  all 
persons  in  any  manner  connected  with  the  case  as  witnesses  to  re- 
main in  the  court  room. 

2  Reagan  v.  United  States,  202  Fed.  488. 


59 


CHAPTER  IX 

PRELIMINARY  HEARING 

§  65.  Preliminary  Examination  of  Accused  as  a  Pre-requisite  to  Indictment. 

§  66.  Powers  and  Status  of  United  States  Commissioners. 

§  67.  Procedure  before  United  States  Commissioner  —  Rules  of  Evidence. 

§  68.  Contempt  before  Commissioner. 

§  69.  Commissioner's  Costs. 

§65.  Preliminary  Examination  of  Accused  as  a  Pre-requisite 
to  Indictment. 

In  his  famous  charge  to  the  grand  jury,  Mr.  Justice  Field  said :  ^ 
"  A  preliminary  examination  of  the  accused  before  a  magistrate 
where  he  can  meet  his  prosecutor  face  to  face,  and  cross-examine 
him,  and  the  witnesses  produced  by  him,  and  have  the  benefit  of 
counsel,  is  the  usual  mode  of  initiating  proceedings  in  criminal 
cases  and  is  the  one  which  presents  to  the  citizen  the  greatest 
security  against  false  accusations  from  any  quarter.  And  this 
mode  ought  not  to  be  departed  from,  except  in  those  cases  where 
the  attention  of  the  jury  is  directed  to  the  consideration  of  partic- 
ular offenses  by  the  court,  or  by  the  district  attorney,  or  the  matter 
is  brought  to  their  knowledge  in  the  course  of  their  investigations, 
or  from  their  own  observations,  or  from  disclosures  made  by  some 
of  their  number.  .  .  ."  And  in  a  recent  case,^  Judge  Ward,  of 
the  United  States  Circuit  Court  of  Appeals  for  the  Second  Circuit, 
speaks  of  the  importance  of  a  preliminary  hearing  before  a  United 
States  Commissioner  in  the  following  language :  "  Ever  since 
United  States  Commissioners  were  appointed  ...  it  has  been 
the  practice  for  them  to  conduct  judicial  hearings  for  the  purpose 
of  inquiring  whether  any  crime  has  been  committed,  and,  if  so, 
whether  there  is  reasonable  ground  for  connecting  the  prisoner 

§  65.   '2  Sawyer,  667.  ^  Safford  v.  United  States,  252  Fed.  471. 

60 


Chap.  IX]        POWERS   AND    STATUS    OF   COMMISSIONERS  [§  66 

with  it,  and  thereupon  either  discharging  him,  imprisoning  him, 
or  admitting  him  to  bail.  It  would  be  a  scandal  to  arrest  and 
imprison  citizens  without  giving  them  a  hearing,  and  we  would 
not  interfere  with  this  uniform  and  wholesome  practice  except 
under  absolute  necessity."  ^  Nevertheless,  the  right  of  an  accused 
person  to  a  preliminary  hearing  is  not  absolute,  and  it  was  held 
that  a  person  accused  of  crime  in  the  Federal  court  is  not  entitled 
as  a  matter  of  right  to  a  preliminary  hearing,  but  may  be  indicted 
without  such  a  hearing  by  the  Federal  Grand  Jury.^ 

§  66.   Powers  and  Status  of  United  States  Commissioners. 

As  the  preliminary  matters  Referred  to  in  Section  1014  of  the 
Revised  Statutes  of  the  United  States  are  usually  held  before 
United  States  Commissioners,  it  is  important  to  ascertain  their 
jurisdiction  and  powers.  These  powers  are  collated  in  United 
States  ih  Allred,^  by  Mr.  Justice  Brown,  as  follows :  "  Acting  under 
the  constitutional  provision,  Art.  2,  sec.  2,  authorizing  it  to  vest 
the  appointment  of  inferior  officers  in  courts  of  law,  Congress 
provided,  as  early  as  1793,  for  the  appointment  by  circuit  courts 
of  '  one  or  more  discreet  persons,  learned  in  the  law,  in  any  district 
for  which  said  court  is  holden  '  for  the  taking  of  bail  for  the 
appearance  of  persons  charged  with  crime,  which  authority,  how- 
ever, was  '  revocable  at  the  discretion  of  such  court.'  These 
officers  took  the  name  of  '  Commissioners  ',  and  from  time  to 
time  their  duties  were  extended  by  different  acts  of  Congress, 
until  they  have  become  an  important  feature  of  the  Federal 
Judicial  system.  .  .  .  The  duties  of  these  officers  are  prescribed 
by  law,  and  they  are,  in  general,  to  issue  warrants  for  offenses 
against  the  United  States;  to  cause  the  offenders  to  be  arrested 
and  imprisoned,  or  bailed,  for  trial,  and  to  order  the  removal  of 
offenders  to  other  districts  (Section  1014)  ;  to  hold  to  security  of 
the  peace  and  for  good  behavior  (Section  727)  ;  to  carry  into  effect 
the  award  or  arbitration,  or  decree  of  any  consul  of  any  foreign 
nation ;    to  sit  as  judge  or  arbitrator  in  such  differences  as  may 

'  For     Preliminary     Hearing     on       185 ;      United    States    v.    Baumert, 
Removal  from  one  district  to  another,       179  Fed.  735. 
see  Chapter  12.  .  §  66.   i  155  U.  S.  591,  39  L.  ed. 

*  United  States  v.  Kerr,  159  Fed.      273,  15  S.  C.  231. 

01 


§  66]  PRELIMINARY   HEARING  [Chap.  IX 

arise  between  the  captains  and  crews  of  any  vessels  belonging  to 
the  nations  whose  interests  are  committed  to  his  charge ;  and  to 
enforce  obedience  by  imprisonment  until  such  award,  arbitration, 
or  decree  is  complied  with  (Section  728) ;  to  take  bail  and  affidavits 
in  civil  causes  (Section  945)  ;  to  discharge  poor  convicts  imprisoned 
for  non-payment  of  fines  (Section  1042)  ;  to  take  oaths  and 
acknowledgments  (Section  1778)  ;  to  institute  prosecutions  under 
the  laws  relating  to  crimes  against  the  elective  franchise,  and  civil 
rights  of  citizens,  and  to  appoint  persons  to  execute  warrants 
thereunder  (Sections  1982-1985)  ;  to  issue  search  warrants  author- 
izing internal  revenue  officers  to  search  premises,  where  a  fraud 
upon  the  revenue  has  been  committed  (Section  3462) ;  to  issue 
warrants  for  deserting  foreign  seamen  (Section  5280) ;  to  summon 
masters  of  vessels  to  appear  before  him  and  show  cause  why  process 
should  not  issue  against  such  vessel  (Section  4546) ;  to  issue 
warrants  for  and  examine  persons  charged  with  being  fugitives 
from  justice  (Sections  5270,  5271).  ..."  A  United  States 
Commissioner  has  power  to  administer  oaths.^  A  Commissioner 
is  not  a  court  and  cannot  enter  a  judgment  against  a  person  brought 
before  him  upon  a  preliminary  hearing.^  Therefore,  costs  of  a 
preliminary  examination  before  a  United  States  Commissioner 
cannot  be  charged  to  the  defendant.'*  A  preliminary  examination 
before  a  Commissioner,  or  other  officer,  is  not  a  case  pending  in 
any  court  of  the  United  States.^ 

§  67.  Procedure  before  United  States  Commissioner  —  Rules 
of  Evidence. 

The  proceedings  before  a  Commissioner  are  not  to  be  regarded 
as  in  the  nature  of  a  final  trial  by  which  the  prisoner  can  be  con- 
victed or  acquitted  of  the  crime  charged  against  him,  but  rather 
of  the  character  of  those  preliminary  examinations  which  take 

^Safford    v.    United    States,    252  234  U.  S.  91,   100,  58  L.  ed.   1231, 

Fed.  471  (C.  C.  A.  2d  Cir.).  34  S.  C.  712;  Todd  v.  United  States, 

» Todd  V.  United  States,   158  U.  158  U.  S.  278,  39  L.  ed.  982,  15  S. 

S.  278,  39  L.  ed.  982,  15  S.  C.  889.  C.  889;    Beavers  v.  Henkel,  194  U. 

*  United  States  v.  Schwartz,  249  S.  73,  48  L.  ed.  883,  24  S.  C.  605 ; 

Fed.  755.  Wright  v.  Henkel,  190  U.  S.  40,  47 

»  United  States  v.  Briebach,  245  L.  ed.  948,  23  S.  C.  777. 
Fed.  204;   Ocampo  v.  United  States, 

62 


Chap.  IX]  CONTEMPT   BEFORE   COMMISSIONER  [§  68 

place  every  day  in  this  country  before  an  examining  or  committing 
magistrate  for  the  purpose  of  determining  whether  a  case  is 
made  out  which  will  justify  the  holding  of  the  accused,  —  either 
by  imprisonment  or  under  bail  or  ultimately  answer  to  an  in- 
dictment or  other  proceeding  in  which  he  shall  be  finally  tried 
upon  the  charge  made  against  him.^  In  proceedings  before  a 
United  States  Commissioner  or  before  some  other  judicial  officer, 
sitting  as  an  examining  magistrate,  the  method  of  procedure 
should  correspond  as  nearly  as  possible  to  that  prevailing  in  the 
courts  of  the  State  where  the  examination  is  conducted.  Section 
1014  of  the  Revised  Statutes  of  the  United  States  has,  however, 
no  relation  to  rules  of  evidence.  The  competency  of  witnesses  in 
criminal  trials  in  the  courts  of  the  United  States  is  not  governed 
by  the  laws  of  the  State,  but  by  the  common  law,  except  where 
Congress  has  made  specific  provisions  on  the  subject.'^  Ad- 
journments may  be  ordered  from  time  to  time  by  the  magistrate 
conducting  the  preliminary  examination.^  A  United  States 
Commissioner  has  power  to  issue  subpoenas  to  witnesses.^  A 
magistrate  has  no  jurisdiction  and  cannot  serve  subpoenas  in 
another  State  to  compel  the  attendance  of  witnesses  for  the 
accused.^ 

§  68.   Contempt  before  Commissioner. 

The  powers  of  a  United  States  Commissioner  are  stricti  juris, 
and  there  is  no  act  of  Congress  which  confers  on  him  the  power  to 
punish  for  contempt.  However,  disobedience  to  his  process 
and  his  authority  is  disobedience  to  the  process  and  authority 
of  the  court,  and  he  should  refer  the  parties,  witnesses  and  others 
guilty  of  contumacious  conduct  before  him  to  the  judge  for 
punishment.^ 

§  67.   1  Benson  v.  McMahon,  127  » United    States    v.    Rundlett,    2 

U.  S.  457,  32  L.  ed.  234,  8  S.  C.  1240.  Curtis  (U.  S.),  41. 

-  Cohen    v.    United    States,     214  *  United    States   v.    Beavers,    125 

Fed.  23  (C.  C.  A.  9th  Cir.) ;    United  Fed.  778. 

States  V.   Dunbar,   83  Fed.    151,   27  »  United  States  v.  White,  2  Wash. 

C.  C.  A.  488  (9th  Cir.).     Tinsley  v.  (C.  C.)  29. 

Treat,  205  U.  S.  20,  51  L.  ed.  689,  §  68.   i  In  re  Automatic  Musical 

27  S.  C.  430  ;  Logan  ?;.  United  States,  Co.,   204  Fed.   334;    United  States 

144  U.  S.  263,  36  L.  ed.^429,  12  S.  C.  v.  Wah,  160  Fed.  207 ;  In  re  Perkins, 

617.  100  Fed.  950. 

63 


§69] 


PRELIMINARY   HEARING 


[Chap.  IX 


§  69.   Commissioner's  Costs. 

Section  1014  of  the  Revised  Statutes  expressly  provides  that  the 
hearing  before  a  commissioner  or  other  magistrate  under  that 
section  shall  be  "at  the  expense  of  the  United  States."  It  seems 
clear  that  neither  R.  S.  §  1014  nor  §  974  directly  authorizes  the  costs 
of  the  hearing  before  the  commissioner  to  be  taxed  against  the 
defendant.  The  commissioner,  of  coiu*se,  is  not  a  court,  and  has 
no  power  to  enter  a  judgment  against  a  person  brought  before 
him  upon  a  preliminary  hearing,  for  any  purpose.^  He  can  only 
inquire  and  determine  whether  or  not  there  are  reasonable  grounds 
to  hold  the  person  to  appear  before  the  court  having  cognizance 
of  the  offense  with  which  he  is  charged,  and  proceedings  before 
the  commissioner  as  an  examining  magistrate  are  not  the  com- 
mencement of  a  prosecution  for  the  offense  of  which  the  person 
may  be  accused.^  The  United  States  District  Court  has  super- 
visory jurisdiction  over  United  States  Commissioners  and  the 
latter  may  be  directed  to  certify  the  proceedings  to  the  court  in 
order  that  the  case  may  be  there  considered.^ 


§  69.  1  Todd  V.  United  States, 
158  U.  S.  278,  39  L.  ed.  982,  15  S. 
C.  889 ;  United  States  v.  Schwartz, 
249  Fed.  775. 

2  Virginia  v.  Paul,  148  U.  S.  119, 
37  L.  ed.  386,  13  S.  C.  536 ;  United 
States  V.  Schwartz,  249  Fed.  755. 


•  United  States  v.  Berry,  4  Fed. 
779 ;  Ex  parte  Gray,  4  Wash.  (C.  C.) 
410;  but  see,  contra,  instructions  by 
Hough,  J.  in  United  States  v.  Enrico 
Maresco  (Southern  District  of  New 
York),  unreported,  decided  in  March, 
1920. 


64 


CHAPTER  X 

CONFRONTATION  WITH  WITNESSES 

§  70.  Constitutional  Provision. 

§  71.  Waiver  of  Right. 

§  72.  Right  Absohite  —  Exceptions. 

§  73.  Former  Testimony. 

§  74.  Dying  Declaration. 

§  75.  When  Provision  Is  Inoperative. 

§  76.  The  Constitutional  Protection  Is  Extended  to  a  Defendant  in  a  Criminal 
Case  Only  —  Not  Applicable  to  Contempts. 

§  70.   Constitutional  Provision. 

The  Sixth  Amendment  provides  that  "  in  all  criminal  prose- 
cutions, the  accused  shall  enjoy  the  right  ...  to  be  confronted 
with  the  witnesses  against  him.  .  .  ."  This  provision  was  in- 
tended to  prevent  the  conviction  of  the  accused  on  ex  parte  affi- 
davits, and  particularly  to  preserve  the  right  of  the  accused  to 
test  the  recollection  of  the  witness  in  the  exercise  of  the  right  to 
cross-examination  .^ 

§  71.   Waiver  of  Right. 

The  right  is  in  the  nature  of  a  privilege  extended  to  the  accused, 
rather  than  a  restriction  upon  him,  and  he  is  free  to  assert  it  or 
to  waive  it,  as  to  him  may  seem  advantageous.^  The  right  is 
mutual  and  exists  on  the  part  of  the  government.^ 

§  72.  Right  Absolute  —  Exceptions. 

The  right  of  confrontation  with  the  witnesses  is  one  without 
exception,  if  the  witnesses  are  living.     It  exists,  not  only  if  the 

§  70.   1  Mattox  V.  United  States,  §  71.   i  Diaz     v.     United    States, 

156  U.  S.  237,  39  L.  ed.  410,  15  S.  C.      223  U.  S.  442,  56  L.  ed.  500,  32  S.  C. 
337;    Kirby  v.   United   States,    174      250. 

U.  S.  47,  43  L.  ed.  890 ;  19  S.  C.  574 ;  *  United  States  v.  AngeU,  11  Fed. 

DowdeU  V.  United  States,  221  U.  S.      34,  43. 
325,  55  L.  ed.  753,  31  S.  C.  590. 

VOL.  I  —  5  65 


§  72]  CONFRONTATION    WITH    WITNESSES  [Chap.  X 

witnesses  can  be  produced,  or  if  they  be  within  the  jurisdiction, 
but  absolutely  and  on  all  occasions.^  If  the  witness  is  living  he 
must  be  produced,  or  his  testimony  cannot  be  received  in  a 
criminal  case,  even  if  he  is  beyond  the  jurisdiction  of  the  court 
or  of  the  United  States.^  There  are  cases  where  the  testimony 
of  the  witness  given  at  the  preliminary  examination  has  been 
admitted  in  evidence  after  his  death,  and  where  the  accused  was 
accorded  the  right  of  cross-examination.^ 

§  73.  Former  Testimony. 

The  constitutional  provision  is  not  violated  by  permitting  the 
testimony  of  a  witness  on  a  former  trial,  since  deceased,  to  be  read, 
the  stenographer  who  made  the  stenographic  report  of  the  former 
testimony  testifying  to  its  correctness.^  It  is  not  enough  that 
the  witness  has  been  present  and  confronted  with  the  accused  at 
the  preliminary  examination  before  the  committing  magistrate. 
The  fair  meaning  of  the  Constitution  is  that  wherever  and  when- 
ever the  accused  is  put  on  his  final  trial  he  shall  be  confronted  with 
the  witnesses  against  him,  if  they  be  alive.^  The  admission  of  a 
statement  or  deposition  of  a  codefendant  of  the  accused,  taken 
at  the  preliminary  examination  before  a  commissioner,  has  been 
held  a  violation  of  the  provision.^  But  if  a  witness  who  has 
testified  on  a  former  trial  is  absent  by  the  accused's  own  wrongful 
procurement,  he  cannot  complain  if  competent  evidence  is 
admitted  to  supply  the  place  of  that  which  he  has  kept 
away.  The  Constitution  does  not  guarantee  an  accused  person 
against  the  direct  consequences  of  his  own  wrongful  acts.  It 
grants  him  the  privilege  of  being  confronted  with  the  witnesses 
against  him ;  but,  if  he  voluntarily  keeps  the  witnesses  away, 
he  cannot  insist  on  his  privilege.  If,  therefore,  when  absent  by 
his  procurement,  their  evidence  is  supplied  in  some  lawful  way,  he 

§  72.   1  United    States   v.    Angell,  410,  15  S.  C.  337 ;    United  States  v. 

11  Fed.  34,  43.  Macomb,  5  McLean  (U.  S.),  285.. 

» United  States  v.  Angell,  11  Fed.  'United  States  v.  Angell,  11  Fed. 

34,  43.  34,  43. 

'United  States  V.  Angell,  11  Fed.  'Motes    v.    United    States,     178 

34,  4:].  U.  S.  458,  471,  44  L.  ed.  1150,  20 

§  73.   '  Mattox  V.  United  States,  S.  C.  993. 
156  U.  S.  237,  240,  39  L.  ed.  409, 

66 


Chap.  X]  PROTECTION    IN    CRIMINAL   CASE    ONLY  [§  76 

is  in  no  condition  to  assert  that  his  constitutional  rights  have  been 
violated.^ 

§  74.   Dying  Declaration. 

The  admission  of  dying  declarations  is  an  exception  which  arises 
from  the  necessity  of  the  case.  This  exception  was  well  established 
before  the  adoption  of  the  Constitution,  and  was  not  intended  to 
be  abrogated.^ 

§  75.   When  Provision  Is  Inoperative. 

The  provision  obviously  applies  to  criminal  prosecutions  tried 
in  the  United  States,  and  not  to  persons  extradited  for  trial  under 
treaties  with  foreign  countries,  whose  laws  may  be  entirely 
different.^ 

§  76.  The  Constitutional  Protection  Is  Extended  to  a  Defendant 
in  a  Criminal  Case  Only  —  Not  Applicable  to  Contempts. 

Therefore,  a  proceeding,  which  entitles  the  plaintiff,  even  though 
it  be  the  government,  to  a  judgment  for  money  only,  and  not  to  a 
judgment  which  directly  involves  the  personal  safety  of  the  defend- 
ant, is  not  within  the  meaning  of  the  amendment.  So,  a  deposition 
of  a  living  witness  may  be  read  in  an  action  for  the  value  of  mer- 
chandise forfeited  to  the  United  States  by  acts  in  violation  of  law.^ 
The  Sixth  Amendment  to  the  Constitution,  providing  that  the  de- 
fendant shall  be  confronted  with  the  witnesses  against  him,  only 
means  that  the  defendant  is  entitled  to  attend  the  trial  and  to  hear 
the  witnesses  testify,  and  does  not  entitle  such  defendant  as  a 
matter  of  right  to  a  list  of  the  witnesses  who  testified  before  the 
grand  jm-y,  but  it  may  be  ordered  in  the  discretion  of  the  court.^  ( 
The  provision  as  to  being  confronted  with  the  witnesses  contained 
in  the  Sixth  Amendment  is  not  applicable  to  a  criminal  contempt 
case.^ 

« Reynolds   v.    United   States,   98  161  U.  S.  475,  480,  40  L.  ed.  777, 

U.  S.  145,  160,  25  L.  ed.  244.  16  S.  C.  641. 

§  74.    1  Kirby    v.    United    States,  *  Wilson    v.    United    States,    221 

174  U.  S.  47,  43   L.  ed.  890,    19  S.  U.  S.  361,  55  L.  ed.  771,  31  S.  C.  538; 

C.  574.  United  States  v.  Aviles,  222  Fed.  474. 

§  75.   1  Ex  parte  La  Mantia,  200  ^  Merchant    Stock    &    Grain    Co. 

Fed.  330.  -  v.  Board  of  Trade,  201  Fed.  20,  120 

§  76.   1  United   States   v.   Zucker,  C.  C.  A.  582  (8th  Cir.). 

67 


CHAPTER  XI 

BAIL 

§  77.  Constitutional  and  Statutory  Provision. 

§  78.  Bail  in  Capital  Cases. 

§  79.  Bail  in  Treason  Cases. 

§  80.  Who  May  Admit  to  Bail. 

§  81.  Reduction  of  Bail. 

§  82.  Admission  to  Bail  Pending  Removal. 

§  83.  Bail  in  Cases  from  State  Courts. 

§  84.  Bail  Bond  Is  a  Contract  —  Enforced  by  Scire  Facias. 

§  85.  Surrender  by  Bail. 

§86.  New  Bail. 

§  87.  Remission  of  Penalty  of  Recognizance  —  WTien  Made. 

§  88.  The  Validity  of   a  Recognizance  Taken  under   an   Unconstitutional 

Statute. 

§  89.  Bail  during  Trial. 

§  90.  Bail  after  Conviction.  ' 

§  91.  Bail  after  Affirmance  and  Pending  Petition  for  Certiorari. 

§  77.   Constitutional  and  Statutory  Provision. 

Article  VIII  of  the  Constitution  of  the  United  States  provides 
"  that  excessive  bail  shall  not  be  required."  The  statutes  passed  in 
amplification  of  the  constitutional  privilege  to  bail  are  as  follows : 
"  Bail  shall  be  admitted  upon  all  arrests  in  criminal  cases  where 
the  offense  is  not  punishable  by  death."  This  section  deals  with 
cases  other  tlian  capital  and  in  such  cases  it  may  be  taken  by  any 
of  the  persons  authorized  by  the  preceding  section  to  arrest  and 
imprison  offenders.^ 

§  78.  Bail  in  Capital  Cases. 

Bail  may  be  admitted  upon  all  arrests  in  criminal  cases  where 
the  punishment  may  be  death ;  but  in  such  cases  it  shall  be  taken 

§  77.   '  Rev.   Stat.    §  1015.     Writ  States  v.  Hamilton,  3  Dallas  (U.  S.), 

of  habeas  corpus  will  lie  where  bail  17,  1  L.  ed.  490;    Ex  parte  BoUman, 

is   refused   or   is   excessive.     United  4  Cranch  (U.  S.),  75,  2  L.  ed.  554. 
68 


Chap.  XI]  WHO  MAY  admit  to  bail  [§  80 

only  by  the  Supreme  Court  or  a  circuit  court,  or  by  a  justice  of 
the  Supreme  Court,  a  circuit  judge,  or  a  judge  of  a  district  court, 
who  shall  exercise  their  discretion  therein,  having  regard  to  the 
nature  and  circumstances  of  the  offense,  and  of  the  evidence,  and 
to  the  usages  of  law.^ 

§  79.  Bail  in  Treason  Cases. 

A  defendant  accused  of  treason  may  be  admitted  to  bail.^ 
But  it  would  seem  that  the  right  to  bail  is  not  absolute  and  it  will 
not  be  granted  as  a  rule  until  after  indictment  and  upon  a  strong 
showing.^ 

§  80.  Who  May  Admit  to  Bail. 

Section  1014  of  the  Revised  Statutes  provides  that  "for  any  crime 
against  the  United  States,  the  offender  may,  by  any  justice  or 
judge  of  the  United  States,  or  by  any  commissioner  of  a  circuit 
court  to  take  bail,  or  by  any  chancellor,  judge  of  a  supreme  or 
superior  court,  chief  or  first  judge  of  common  pleas,  mayor  of  a 
city,  justice  of  the  peace,  or  other  magistrate,  of  any  State  where  he 
may  be  found,  and  agreeable  to  the  usual  mode  of  process  against 
offenders  in  such  state,  and  at  the  expense  of  the  United  States, 
be  arrested  and  imprisoned,  or  bailed,  as  the  case  may  be,  for  trial 
before  such  court  of  the  United  States  as  by  law  has  cognizance  of 
the  offense.  ..."  The  Court  has  power,  when  advised  by  a 
deputy  clerk  that  a  prisoner  desires  to  be  admitted  to  bail,  to  fix 
the  amount  of  the  bail  and  direct  the  Clerk  to  accept  certain  per- 
sons as  sureties  on  the  bond.^  In  such  a  case  the  personal  pres- 
ence of  the  sureties  in  open  court  is  not  required.  The  presence^ 
of  the  sureties  in  open  court  is  only  required  when  they  enter  in 
an  open  court  common  law  recognizance.  An  open  court  common 
law  recognizance  is  ordinarily  not  signed  by  the  sureties.  The 
sureties   appear   in    court   and    solemnly    pledge   themselves   to 

§  78.   1  Rev.  Stat.  §  1016.  240  Fed.  241,  153  C.  C.  A.  167  (6th 

§  79.   1  United  States  v.  Hamilton,  Cir.). 
3  Dallas  (U.  S.),  17,  1  L.  ed.  490;  =  Hunt  v.  United  States,  63  Fed. 

1  Burr's  Trial,  310.  568,    11    C.   C.   A.   340    (8th   Cir.); 

-  United     States     v.     Stewart,     2  Ewing   v.    United    States,    240    Fed. 

DaUas  (U.  S.),  343,  1  L.  ed.  408.  241,  153  C.  C.  A.  167  (6th  Cir.). 

§  80.   1  Ewing   V.    United    States, 

69 


§  80]  BAIL  [Chap.  XI 

produce  the  prisoner  in  court  when  required  by  law  or  rule  of 
court  .^ 

§  81.  Reduction  of  Bail. 

Where  a  party  is  already  out  on  bail  on  a  civil  process  growing 
out  of  the  same  transaction,  his  bail  in  criminal  cases  will  be  pro- 
portionally reduced.^ 

§  82.   Admission  to  Bail  Pending  Removal. 

Section  943  of  the  Revised  Statutes  of  the  United  States  provides : 
"  When  a  defendant  who  has  procured  bail  to  respond  to  the  judg- 
ment in  a  suit  in  any  court  of  the  United  States  in  any  district  is 
afterward  arrested  in  any  other  district  and  is  committed  to  a  jail, 
the  use  of  which  had  been  ceded  to  the  United  States  for  the  custody 
of  prisoners,  the  judge  of  the  court  wherein  the  suit  in  which  the 
defendant  has  so  procured  bail  is  depending,  shall,  at  the  request 
of  the  bail,  order  that  such  defendant  be  held  in  said  jail,  in  the 
custody  of  the  marshal  of  the  district  in  which  it  is.  The  said 
marshal,  upon  the  delivery  of  such  order,  duly  authenticated, 
shall  receive  such  person  into  his  custody,  and  thereupon  be  charge- 
able for  an  escape,  and  shall  forthwith  make  a  certificate,  under 
his  hand  and  seal,  of  such  commitment,  and  transmit  the  same  to 
the  court  from  which  the  order  issued,  and,  if  required,  shall  make 
and  deliver  to  such  bail  or  to  his  attorney  a  duplicate  thereof. 
Upon  the  return  of  said  certificate,  the  court  which  made  the  said 
order,  or  any  judge  thereof,  may  direct  that  an  exoneretur  be  en- 
tered upon  his  bail-piece,  where  special  bail  shall  have  been  found, 
or  otherwise  discharge  such  bail." 

§  83.  Bail  in  Cases  from  State  Courts. 

"  When  a  writ  of  error  is  issued  for  the  revision  of  the  judgment  of 
a  State  court,  in  any  criminal  proceeding  where  is  drawn  in  ques- 
tion the  validity  of  a  statute  of,  or  an  authority  exercised  under, 
the  United  States,  or  where  any  title,  right,  privilege,  or  immunity 
is  claimed  under  the  Constitution,  or  any  statute  of,  or  commission 
held  or  authority  exercised  under,  the  United  States,  the  defendant, 
if  charged  with  an  offense  that  is  bailable  by  the  laws  of  such  State, 

•  Ewing    V.    United    States,    240  §  81.   »  Smith  v.  Lee,  13  Fed.  28. 

Fed.  241,  153  C.  C.  A.  1G7  (6th  Cir.). 
70 


Chap.  XI]  SURRENDER  BY  BAIL  [§  85 

shall  not  be  released  from  custody  until  a  final  judgment  upon  such 
writ,  or  until  a  bond,  with  sufficient  sureties,  in  a  reasonable  sum, 
as  ordered  and  approved  by  the  State  court,  is  given ;  and  if  the 
offense  is  not  so  bailable,  until  a  final  judgment  upon  the  writ 
of  error."  ^ 

§  84.  Bail  Bond  Is  a  Contract  —  Enforced  by  Scire  Facias. 

Under  the  laws  of  the  United  States  a  bail  bond  given  in  a  crim- 
inal case  is  a  contract  between  the  sureties  and  the  government 
that  if  the  latter  will  release  the  principal  from  custody,  the  sure- 
ties will  undertake  that  he  shall  personally  appear  at  a  specific 
time  and  place  to  answer.  If  the  condition  of  the  bail  bond  is 
broken  by  the  failure  of  the  principal  to  appear,  the  sureties  be- 
come the  absolute  debtors  of  the  United  States  for  the  amount  of 
the  penalty.  Therefore  a  debt  resulting  from  the  forfeiture  of  a 
bail  bond  for  the  appearance  of  a  party  in  a  criminal  case  may  be 
enforced  by  scire  facias  in  the  court  possessing  the  record,  or  by 
an  ordinary  suit  in  any  other  court  of  competent  jurisdiction.^ 
The  proceeding  by  scire  facias  is  a  civil  action,  separate  and  dis- 
tinct from  the  criminal  suit,  as  much  so  as  would  be  an  action  in 
debt  founded  on  same.^ 

§  85.   Surrender  by  Bail. 

"  Any  party  charged  with  a  criminal  offense  and  admitted  to 
bail,  may,  in  vacation,  be  arrested  by  his  bail,  and  delivered  to  the 
marshal  or  his  deputy,  before  any  judge  or  other  officer  having 
power  to  commit  for  such  offense ;  and  at  the  request  of  such  bail, 
the  judge  or  other  officer  shall  recommit  the  party  so  arrested  to 

§  83.   1  Rev.  Stat.  §  1017.  U.  S.  424,  41  L.  ed.  1063,  17  S.  C. 

§  84.    1  United     States     v.     Zara-  609 ;    Owens  v.   McCloskey,   161  U. 

fonitis,  et  al.,  150  Fed.  97,  80  C.  C.  A.  S.  642 ;  40  L.  ed.  837,  16  S.  C.  693 ;  • 

51     (5th     Cir.) ;     United    States    v.  Browne   t'.    Chavez,    181    U.    S.    68, 

Dunbar,  83  Fed.  151,  27  C.  C.  A.  45  L.  ed.  752,  21  S.  C.  514;    Mc- 

488  (9th  Cir.) ;  Kirk  v.  United  States,  Roberts  v.  Lyon,  79  Mich.  33  ;    Hol- 

124  Fed.  324,  333 ;   United  States  v.  lister    v.    United    States,    145    Fed. 

Insley,  54  Fed.  221,  4  C.  C.  A.  296  773,   76   C.   C.   A.   339    (8th   Cir.) ; 

(8th  Cir.) ;    United  States  v.  Graner,  Winder  v.  Caldwell,  14  How.  (U.  S.) 

155  Fed.  679.  434,    443,    14   L.    ed.   487 ;     United 

*  United    States    v.    Payne,     147  States  v.  Stone,  2  Wall.  (U.  S.)  525, 

U.  S.  687 ;    37  L.  ed.  J332,  13  S.  C.  535,  17  L.  ed.  765 ;    People  v.  Rub- 

442;     Hunt   v.   United   States,    166  right,  241  111.  600,  602. 

71 


§  85]  BAIL  [Chap.  XI 

the  custody  of  the  marshal,  and  Indorse  on  the  recognizance  or 
certified  copy  thereof,  the  discharge  and  exoneretur  of  such  bail ; 
and  the  party  so  committed  shall  therefrom  be  held  in  custody 
until  discharged  by  due  course  of  law."  ^ 

§86.   NewBaU. 

When  proof  is  made  to  any  judge  of  the  United  States,  or  other 
magistrate  having  authority  to  commit  on  criminal  charges  as 
aforesaid,  that  a  person  previously  admitted  to  bail  on  any  such 
charge  is  about  to  abscond,  and  that  his  bail  is  insufficient,  the 
judge  or  magistrate  shall  require  such  person  to  give  better  se- 
curity, or,  for  default  thereof,  cause  him  to  be  committed  to  prison  ; 
and  an  order  for  his  arrest  may  be  indorsed  on  the  former  commit- 
ment, or  a  new  warrant  therefor  may  be  issued,  by  such  judge  or 
magistrate,  setting  forth  the  cause  thereof.^  Under  this  section 
it  was  held  that  a  magistrate  possesses  power  to  order  verbal 
arrests  only  in  case  of  felony,  breach  of  the  peace  committed  in 
his  presence,  for  contempt  in  open  court,  or  so  near  thereto  as  to 
disturb  his  official  proceedings.^  When,  however,  proof  is  made 
before  any  magistrate  with  authority  to  commit  on  criminal  charges 
that  a  person  previously  admitted  to  bail  is  about  to  abscond  and 
that  his  bail  is  insufficient,  such  magistrate  can  order  such  person 
to  furnish  new  security  or  remand  him  to  prison  and  an  order  for 
his  arrest  may  be  indorsed  on  the  former  commitment  or  a  new 
warrant  therefor  may  be  issued  setting  forth  the  cause.^ 

§  87.   Remission  of  Penalty  of  Recognizance  —  When  Made. 

"  When  any  recognizance  in  a  criminal  cause,  taken  for,  or  in 
OT  returnable  to,  any  court  of  the  United  States,  is  forfeited  by  a 
breach  of  the  condition  thereof,  such  court  may,  in  its  discretion, 
remit  the  whole  or  a  part  of  the  penalty,  whenever  it  appears  to 
the  court  that  there  has  been  no  wilful  default  of  the  party,  and 
that  a  trial  can,  notwithstanding,  be  had  in  the  cause,  and  that 
public  justice  does  not  otherwise  require  the  same  penalty  to  be 
enforced."  ^     The  court  can  remit  the  penalty  in  whole  or  in  part 

§  85.   '  Rov.  Stat.  §  1018.  '  United  States  v.  Ebbs,  49  Fed. 

§  86.    1  Rev.  Stat.  §  1019.  149. 

2  United  States  v.  Ebbs,  49  Fed.  §  87.    ^  Rev.  Stat.  §  1020. 

149,    151;     United   States   v.   Ebbs, 
10  Fed.  369. 
72 


Chap.  XI]  BAIL    DURING    TRIAL  [§  89 

only  when  the  default  of  the  defendant  was  not  wilful.^  Failing 
to  appear  at  the  trial  because  of  advice  of  counsel  is  a  wilful  de- 
fault.^ An  application  to  remit  the  penalty  on  a  bail  bond  may 
be  made  at  any  time  and  is  not  governed  by  the  rule  that  a  motion 
to  set  aside  a  judgment  must  be  made  within  the  term.^ 

§  88.  The  Validity  of  a  Recognizance  Taken  under  an  Un- 
constitutional Statute. 

The  authorities  are  not  in  accord  upon  the  proposition  whether 
a  bail  bond  taken  under  a  penal  statute  which  was  afterwards  de- 
clared unconstitutional  is  a  binding  obligation.  In  United  States 
V.  Sauer/  Judge  ^Maxey  upon  the  review  of  the  authorities  held  that 
such  a  recognizance  is  absolutely  void,  while  the  United  States 
Circuit  Court  of  Appeals  for  the  Seventh  Circuit  in  the  case  of 
United  States  v.  Du  Faur  -  held  to  the  contrary.  The  Court  of 
Appeals  placed  its  decision  upon  the  ground  that  the  bail  bond  was 
a  contract  and  therefore  enforceable.  The  soundness  of  this  con- 
tention may  be  well  questioned.  An  unconstitutional  law  is  no 
law.  It  creates  no  rights  and  imposes  no  obligations.  The  court 
has  no  power  to  require  a  recognizance.  The  principal  not  being 
bound  to  appear  the  surety  is  deprived  of  the  means  of  arresting 
him  and  of  surrendering  the  bail.  Such  a  contract  is  without 
consideration  and  is  void  ab  initio.^ 

§  89.   BaU  during  Trial. 

The  right  of  a  defendant  to  bail  during  the  trial  is  discretionary 
with  the  court.  A  defendant  in  a  criminal  case  has  no  absolute 
right  to  be  admitted  to  bail  during  the  trial.^ 

*  United  States  v.  Fabata,  253  Fed.  charge,  is  discussed  in  the  notes  to 
586 ;  United  States  v.  Robinson,  158  Hargis  v.  Begley,  23  L.  R.  A.  (n.  s.) 
Fed.  410,  85  C.  C.  A.  520  (4th  Cir.).      136 ;  State  v.  Funk,  30  L.  R.  A.  (n.  s.) 

'United    States    v.    Fabata,    253  211,  50  L.  R.  A.  (n.  s.)  252;  Metcalf 

Fed.  586.  v.  State,  L.  R.  A.  1916  E,  595,  and  in 

*  United  States  v.  Jenkins,  176  State  v.  Herber,  L.  R.  A.  1918  F,  396. 
Fed.  672,  100  C.  C.  A.  224  (4th  Cir.) ;  §  88.   i  73  Fed.  671. 

United  States  v.  Traynor,   173  Fed.  =  187    Fed.    812,    109    C.    C.    A. 

114;    Hunter  v.  United  States,   195  572  (7th  Cir.). 

Fed.    253    (8th    Cir.).     LiabiUty    of  '  United  States  v.  Hand,  6  McLean, 

bail  where  the  principal  fails  to  appear  274 ;  United  States  v.  Goldstein's  Sure- 

from  no  fault  of  his  own,  including  ties,  1  Dill.  413,  Fed.  Cas.  No.  15226. 

'  cases  where  the  failure  was  due  to  §  89.   ^  United     States     v.     Rice, 

his  arrest  and  conviction  on  another  192  Fed.  720. 

73 


§  90]  BAIL  [Chap.  XI 

§  90.  Bail  after  Conviction. 

In  United  States  v.  St.  John/  Judge  Evans  held  that  a  defend- 
ant has  no  absolute  right  to  bail  after  conviction  and  pending  a 
vsTit  of  error  and  that  the  admission  to  bail  was  discretionary.  It 
was  further  held  that  the  defendant,  in  any  event,  was  not  entitled 
to  bail  from  a  justice  of  the  Court  of  Appeals  without  a  presenta- 
tion of  a  bill  of  exception.  Pending  a  hearing  in  the  Circuit 
Court  of  Appeals,  a  defendant  convicted  of  crime  may  be  released 
on  bail  in  an  amount  to  be  fixed  and  approved  by  the  court.^ 
Where  a  defendant  was  allowed  a  writ  of  error  and  bail  and  failed 
to  perfect  his  writ  of  error  within  six  months,  as  provided  by 
statute,  the  district  court  may  vacate  the  order  allowing  the  writ  of 
error  and  bail  and  commit  the  defendant  to  the  custody  of  the  mar- 
shal to  serve  his  term  of  imprisonment.^  The  Supreme  Court  of 
the  United  States  laid  down  the  rule  that  "  the  statutes  of  the 
United  States  have  been  framed  upon  this  theory :  that  a  person 
accused  of  crime  shall  not,  until  he  has  been  finally  adjudged 
guilty  in  the  court  of  last  resort,  be  absolutely  compelled  to  un- 
dergo punishment,  but  may  be  admitted  to  bail,  not  only  after  arrest 
and  before  trial,  but  after  conviction  and  pending  a  writ  of  error."  ^ 
The  Trial  Judge  as  well  as  the  Court  of  Appeals  has  the  power  to 
release  a  convicted  person  on  bail  pending  the  determination  of 
the  writ  of  error  and  it  is  his  duty  to  do  so. ^ 

§  91.  Bail  after  Affirmance  and  Pending  Petition  for  Certio- 
rari. 

Bail  is  a  stay  of  proceedings,  arising  out  of,  and  is  a  part  of,  the 
pendency  of  a  writ  of  error.  The  proceedings  in  error  ended,  the 
right  to  admit  to  bail  is  ended.  But  the  court  has  the  power,  on  a 
motion  of  the  defendant,  to  defer  the  beginning  of  the  sentence 
named  in  the  judgment  for  such  time  as,  within  the  judgment  of 

§  90.   1  254  Fed.  794  (7th  Cir.).  » United    States    v.    PoUak,    230 

^  United     States     v.     Billingsley,  Fed.  532. 
242   Fed.   330;     Hudson   v.   Parker,  *  Hudson    v.    Parker,    156    U.    S. 

156  U.  S.  277;    39  L.  ed.  424;    15  277,  39  L.  ed.  424,  15  S.  C.  450. 
S.  C.450;  Hardesty  y.  United  States,  "  M'Kjiight  v.  United  States,  113 

184    Fed.    269,    106   C.    C.    A.    411  Fed.  451,  —  C.  C.  A.  —  (6th  Cir.); 

(6th  Cir.);    Matter  of  Classen,   140  In    re     Classen,     140    U.     S.     200, 

U.  S.  200,  35  L.  ed.  409;    11  S.  C.  35  L.  ed.  409,  11  S.  C.  735. 
735. 

74 


Chap.  XI]  BAIL  after  affirmance  [§  91 

the  court,  is  reasonable,  as,  for  instance,  in  case  of  temporary  ill- 
ness, or  a  necessity  involving  the  interest  of  others  as  well  as  him- 
self, that  his  affairs  should  be  arranged,  or  an  application,  in  good 
faith,  being  about  to  be  made  to  the  Supreme  Court,  for  a  writ 
of  certiorari  pending  such  application,  provided  the  same  be 
within  a  reasonable  time.^ 

§  91.   1  Walsh  V.  United  States,  177  Fed.  208, 209, 101  C.  C.  A.  378  (7th  Cir.) . 


75 


CHAPTER  XII 

REMOVAL  FOR  TRIAL  FROM   ONE   DISTRICT  TO  ANOTHER 

UNDER  SECTION   1014  OF  THE   REVISED  STATUTES 

OF   UNITED   STATES 

§  92.  Preliminary  Hearing  —  Arrest  —  Opportunity  to  Be  Heard. 

§  93.  Who  May  Conduct  Examination. 

§  94.  Indictment  or  Complaint  as  Pre-requisite. 

§  95.  Indictment  Is  Only  Prima  Facie  Evidence  of  Probable  Cause. 

§  96.  Points  Decided  by  the  Tinsley  Case.       ' 

§  97.  Right  of  Accused  to  Offer  Evidence. 

§  98.  Return  by  United  States   Commissioner  to  United   States  District 
Court. 

§  99.  Re\'iew  by  District  Judge. 

§  100.  Right  to  Discharge. 

§  101.  Relief  from  Order  of  Removal  by  Habeas  Corptis. 

§  102.  Writ  for  Removal  of  Prisoner  from  One  District  to  Another. 

§  103.  Arrest  and  Removal  to  or  from  the  Philippine  Islands. 

§  92.  Preliminary  Hearing  —  Arrest  —  Opportunity  to  Be 
Heard. 

A  removal  cannot  be  ordered  until  the  defendant  has  been 
arrested  and  committed  and  given  opportunity  to  show  cause 
why  he  should  not  be  removed.^  Removal  proceedings  are  not 
applicable  to  corporations,^  as  a  corporation  cannot  be  arrested 
in  curpore?  A  defendant  charged  with  the  commission  of  a 
Federal  offense  may  be  removed  to  the  District  of  Columbia, 
as  the  Supreme  Court  of  said  District  is  a  Court  of  the  United 
States.'* 

§  92.   1  United   States   v.    Karlin,  '  In   re    Rosenwasser    Bros.,   254 

85  Fed.  963;    Price  v.  McCarty,  89  Fed.  171. 

Fed.  84,  32  C.  C.  A.  162    2d  Cir.).  ^Benson   v.    Henkel,    198    U.    S. 

For  release  on  bail  pending  removal  1,  49  L.  ed.  919,  25  S.  C.  509 ;  United 

proceedings,  see  bail.  States  v.  Ilyde,  132  Fed.  545,  s.  c. 

»  United   Stutes   v.   Standard   Oil  199  U.  S.  62,  50  L.  ed.  90,  25  S.  C. 

Co.,  1.54  Fed.  728.  760. 
76 


Chap.  XII]       INDICTMENT   OR    COMPLAINT  AS  PRE-REQUISITE      [§  94 

§  93.   Who  May  Conduct  Examination. 

While  State  officials  have  jurisdiction  to  hear  the  application 
under  Section  1014  of  the  Revised  Statutes  the  Courts  of  the 
United  States  prefer  that  the  hearing  shall  take  place  before  the 
nearest  United  States  Commissioner.^  The  judicial  tribunals  of 
the  United  States  Government  have  exclusive  authority  to  deter- 
mine whether  a  person  held  in  custody  by  authority  of  the  United 
States  courts,  its  commissioner  or  officers,  are  held  in  conformity 
with  law.^  State  procedure  which  denies  a  preliminary  examina- 
tion to  a  person  charged  with  crime  and  about  to  be  removed  to 
another  district  is  not  applicable  in  the  Federal  Courts.^  A  United 
States  Commissioner  has  no  power  to  direct  the  removal  for  trial 
of  a  person  charged  with  a  Federal  offense  to  another  district. 
His  jurisdiction  extends  only  to  the  issuance  of  a  warrant  to  hold 
the  prisoner  in  custody  until  released  on  bail,  if  the  offense  is 
bailable,  or  until  a  warrant  for  his  removal  is  issued  by  the  United 
States  District  Judge.^  In  all  removal  proceedings  identity  of  the 
prisoner  must  be  first  established.^  Persons  who  were  not  in  the 
district  where  the  crime  is  alleged  to  have  been  committed  should 
not  be  removed  for  trial  in  that  district.*^  The  examination 
should  be  directed  to  two  main  propositions,  first,  whether  an 
offense  has  been  committed  and,  second,  whether  there  is  probable 
cause  to  believe  the  defendant  guilty.^ 

§  94.   Indictment  or  Complaint  as  Pre-requisite. 

Before  there  can  be  a  removal,  there  must,  of  course,  be  either 
an  indictment  returned  against  the  accused  or  some  other  strong 
evidence  based  upon  a  complaint  supported  by  oath  tending  to 
show  that  he  committed  the  crime  charged  against  him.^  A 
person  cannot  be  ordered  removed  for  trial  in  another  district,  if  the 
complaint  or  indictment  charge  no  offense  under  the  laws  of  the 

§  93.    1  United  States  v.   Yarbor-  Horner  v.  United  States,   143  U.  S. 

ough,  122  Fed.  293.  207,   36  L.  ed.    126,    12  S.  C.  407 ; 

'Robb    V.    Connolly,    HI    U.    S.  Gayon  ?;.  McCarthy  (U.S.  Supreme 

624,  639,  28  L.  ed.  542,  4  S.  C.  544.  Court,  March  1,  1920.     Adv.    Sheets 

•Tinsley  v.  Treat,  205  U.  S.  20,  No.  10,  p.  280). 
51  L.  ed.  689,  27  S.  C.  430.  « Ireland  v.  Henkle,  179  Fed.  993. 

*  Hastings  v.    Murchie,   219   Fed.  ^  Pereles  v.  Weil,  157  Fed.  419. 

83  (C.  C.  A.  1st  Cir.).  §  94.   i  Greene  v.  Henkel,  183  U.  S, 

» In  re  Burkhardf,   33   Fed.   25;  249,  46  L.  ed.  177,  22  S.  C.  218. 

77 


§  94]  REMOVAL   FOR   TRIAL  [Chap,  XII 

United  States  or  where  it  is  fundamentally  defective.^  It  is 
enough  if  the  indictment  or  complaint  charge  in  substance  an 
offense  against  the  United  States.  The  commissioner  must  leave 
the  question  of  the  sufficiency  of  the  indictment  to  be  tested  out 
before  the  court  which  returned  the  indictment.^  Irregularities 
in  connection  with  the  organization  of  the  grand  jury  cannot  be 
tested  out,  in  removal  proceedings.^  The  earlier  decisions,  such 
as  In  re  Terrell,^  holding  that  a  removal  will  be  denied  and  the 
prisoner  discharged  on  habeas  corjms  if  in  the  opin  on  of  the  court 
the  indictment  may  be  quashed  on  demurrer,  are  limited  by  the 
decisions  of  the  United  States  Supreme  Court  to  the  rule  above 
stated.  A  prisoner  may  be  discharged  on  habeas  coryus  only  if 
the  indictment  utterly  fails  to  charge  any  offense  against  the  laws 
of  the  United  States.  Where  the  application  for  removal  is 
based  on  an  indictment  containing  several  counts  it  is  enough  to 
justify  an  order  for  removal  if  the  indictment  contains  one  good 
count.^  In  a  removal  proceeding  the  first  fundamental  inquiry  is 
the  jurisdiction  of  the  court  of  the  district  to  which  removal  is 
sought  and  whether  the  indictment  charges  any  offense  against 
the  United  States.  These  questions  may  be  raised  at  the  pre- 
liminary hearing  before  the  United  States  Commissioner,  or  the 
United  States  District  Judge  at  the  time  when  the  warrant  of 
arrest  is  applied  for.  If  either  of  said  requisites  is  wanting,  the 
application  for  removal  must  be  denied.^ 

2  Stewart   v.    United   States,    119  Tinsley  v.  Treat,  205  U.  S.  20,  51 

Fed.  89,  55  C.  C.  A.  631  (8th  Cir.) ;  L.  ed.  689,  27  S.  C.  430;  In  re  Quinn, 

Henry    v.    Henkel,    235    U.    S.    219,  176  Fed.  1020 ;  Greene  v.  McDougall, 

59  L.  ed.  203,  35  S.  C.  54.  136   Fed.   618 ;    In  Re  Huntington, 

*  In    re    Benson,    130    Fed.    486,  68  Fed.  882 ;    United  States  v.  Con- 

afirmed  198   U.  S.  1,  49  L.  ed.  919,  ners,     111    Fed.    734;     Beavers    v. 

25  S.  C.  569 ;   Beavers  v.  Henkel,  194  Henkel,  194  U.  S.  73,  48  L.  ed.  882, 

U.  S.  73,  48  L.  ed.  882,  24  S.  C.  605.  24  S.  C.  605  ;  Horner  v.  United  States, 

^  Greene    v.    Henkel,    183    U.    S.  143  U.  S.  207,  36  L.  ed.  126,  12  S.  C. 

249,  46  L.  ed.   177,  22  S.   C.  218;  407;     Ireland   v.   Henkel,    179   Fed. 

Price  V.   McCarty,   89   Fed.   84,   32  993;    United  States  v.   Fowkes,   53 

C.  C.  A.  162  (2d  Cir.).  Fed.  13,  3  C.  C.  A.  394  (3d  Cir.); 

»  51  Fed.  213  and  the  cases  cited.  United    States   v.    Black,    160   Fed. 

•Price  t^.  Henkel,  216  U.  S.  488,  431,  87  C.  C.  A.  401  (7th  Cir.);   In 

54  L.  ed.  581,  30  S.  C.  257.  re  Richter,  100  Fed.  295;    Greene  v. 

■>  Henry    v.    Henkel,    235    U.    S.  Henkel,  183  U.  S.  249,  46  L.  ed.  171, 

219,  59  L.  ed.  203,  35  S.  C.  540;  22  S.  C.  120. 


Chap.  XII]     right  of  accused  to  offer  evidence  [§  97 

§  95.  Indictment  Is  Only  Prima  Facie  Evidence  of  Probable 
Cause. 

It  is  now  well  settled  that  in  proceedings  to  remove  a  prisoner 
for  trial  to  the  district  where  the  offense  is  charged  to  have  been 
committed  the  indictment  is  prima  facie  evidence  of  probable 
cause  that  the  defendant  committed  the  offense  in  the  district  in 
which  the  indictment  was  found.^  But  the  indictment  is  by  no 
means  conclusive  and  may  be  rebutted  by  evidence.^ 

§  96.   Points  Decided  by  the  Tinsley  Case.^ 

(a)  That  the  duty  of  the  district  judge,  on  an  application  for 
removal  under  Section  1014,  is  judicial,  not  merely  ministerial,  in 
the  inquiry  which  it  involves  of  probable  cause  for  the  charge  upon 
which  removal  is  sought,  (b)  That  the  indictment  cannot  be 
treated  as  conclusive ;  that  it  is  only  prima  facie  evidence  which 
may  be  overcome  by  proof ;  and  that  evidence  to  that  end  is  not 
only  admissible  upon  inquiry,  but  must  receive  just  consideration, 
in  so  far  as  it  tends  to  disprove  either  jurisdiction  for  trial  or 
amenability  under  the  charge.^ 

§  97.   Right  of  Accused  to  Offer  Evidence. 

The  defendant  may  present  evidence  to  show  that  the  offense 
was  not  committed  within  the  district  to  which  it  is  aimed  to  have 
him  removed  for  trial  or  showing  his  innocence  and  the  want  of 
probable  cause.  He  may  also  exhibit  other  legal  reasons  why 
the  application  for  removal  should  be  denied.^  The  evidence 
submitted  by  a  defendant  will  not  carry  much  weight  if  he  claims 
the  privilege  of  exemption  from  cross-examination,  under  a  State 
statute.^    The  main  fact  that  a  grand  jury  sitting  in  another  dis- 

§  95.   1  Beavers    v.    Henkel,     194  United  States  v.   Greene,    100  Fed. 

U.   S.  73,  48  L.  ed.  882,  24  S.  C.  941,   183  U.  S.  249,  46  L.  ed.  177, 

605.  22  S.  C.  218 ;    United  States  v.  Lee, 

2  Tinsley  v.  Treat,  205  U.  S.  20,  84  Fed.  626 ;    Price  v.  McCarty,  89 

51  L.  ed.  689,  27  S.  C.  430.  Fed.  84,  32  C.  C.  A.  162  (2d  Cir.) ; 

§  96.   1  Tinsley  v.   Treat,   205  U.  United   States   v.    Fowkes,    53    Fed. 

S.  20,  51  L.  ed.  689,  27  S.  C.  430.  13,  3  C.  C.  A.  394  (3d  Cir.) ;  Tinsley 

2  United  States  v.  Black,  160  Fed.  v.  Treat,  205  U.  S.  20,  51  L.  ed.  689, 

431,  87  C.  C.  A.  401  (7th  Cir.).  27  S.  C.  430;    Hastings  v.  Murchie, 

§  97.   '  In  re  Price,  83  Fed.  830;  219  Fed.  83  (C.  C.  A.  1st  Cir.). 
United  States  v.  Pope>  Fed.  Cas.  No.  *  Beaver  v.   Hanbert,    198   U.   S. 

16069;    In  re  Wood,  95  Fed.  288;  77,  49  L.  ed.  950,  25  S.  C.  573. 

79 


§  97]  REMOVAL    FOR   TRIAL  [Chap.  XII 

trict  laid  the  venue  of  the  same  crime  in  its  district  is  not  sufficient 
evidence  that  the  crime  has  been  committed  in  the  district  on  the 
indictment  on  which  a  removal  is  demanded.^ 

§  98.  Return  by  United  States  Commissioner  to  United  States 
District  Court. 

It  is  the  duty  of  the  commissioner  to  return  all  papers  and  the 
evidence  to  the  court  and  the  ruling  of  the  commissioner  thereon.^ 
Seasonable  notice  of  the  filing  of  the  return  to  the  commissioner 
must  be  given  to  the  accused  so  that  he  may  resist  the  application 
for  removal  before  the  judge. ^ 

§  99.   Review  by  District  Judge. 

A  person  accused  of  crime  is  entitled  to  the  judgment  of  the 
district  judge  as  to  the  existence  of  probable  cause  on  the  evidence 
that  was  adduced  before  the  United  States  Commissioner,  or  that 
might  have  been  adduced  had  he  been  permitted  to  introduce 
same.^  A  Federal  judge  misconceives  his  duty  and  fails  to  protect 
the  liberty  of  the  citizen  if  he  issues  the  warrant  solely  on  the 
strength  of  an  indictment  found  in  a  foreign  district,  which  does 
not  substantially  state  an  offense  under  Federal  laws.^  The 
liberty  of  the  citizen,  and  his  general  right  to  be  tried  in  a  tribunal 
or  forum  of  his  domicile,  imposes  upon  the  judge  the  duty  of 
considering  and  passing  upon  the  record  made  before  the  United 
States  Commiss'ioner,^  and  he  is  not  limited  to  such  record  but 
may  demand  further  evidence.'*  As  INIr.  Justice  Brewer  appro- 
priately observed  in  Beavers  v.  Henkel :  ^  "It  may  be  conceded 
that  no  such  removal  should  be  summarily  and  arbitrarily  made. 
There  are  risks  and  burdens  attending  it  which  ought  not  to  be 

'Haas  V.  Henkel,  216  U.  S.  402,  ^  Stewart    v.    United    States,    119 

54  L.  ed.  5C9,  30  S.  C.  249.  Fed.  89,  55  C.  C.  A.  G31  (8th  Cir.). 

§98.    >  United  States  v.   Yarbor-  » In    re    Richter,    100    Fed.    295; 

ough,  122  Fed.  293.  In  re  Greene,  52  Fed.  104,  Approved 

« United    States    v.    Yarborough,  in  205  U.  S.  29,  51  L.  ed.  GS9,  27 

122  Fed.   293 ;    In  re  Beshears,   79  S.  C.  430. 

Fed.  70;  United  States  r.  Shepard,  1  ^United    States    v.    Reddin,    193 

Abb.  (U.  S.)  431,  Fed.  Gas.  No.  16273.  Fed.  798;    In  re  Richter,   100  Fed. 

§  99.    >  Tinsley  v.   Treat,   205  U.  295. 
S.  20,  59  L.  ed.   203,  35  S.  G.  54;  »  194  U.  S.  73,  48  L.  ed.  882,  24 

Price  t;.    McGarty,   89   Fed.   84,   32  S.  G.  605. 
C.  G.  A.  102  (2d  Gir.). 

80 


Chap.  XII]  REVIEW   BY   DISTRICT  JUDGE  [§  101 

needlessly  cast  upon  any  individual.  These  may  not  be  serious 
in  a  removal  from  New  York  to  Brooklyn,  but  might  be  if  the 
removal  was  from  San  Francisco  to  New  York,  and  statutory 
provisions  must  be  interpreted  in  the  light  of  all  that  may  be  done 
under  them.  We  must  never  forget  that  in  all  controversies, 
civil  or  criminal,  between  the  government  and  an  individual, 
the  latter  is  entitled  to  reasonable  protection.  Such  seems  to 
have  been  the  purpose  of  Congress  in  enacting  Section  1014 
Revised  Statute  which  requires  that  the  order  of  removal  be  issued 
by  the  judge  of  the  district  in  which  the  defendant  is  arrested.  In 
other  words,  the  removal  is  made  a  judicial  rather  than  a  mere 
ministerial  act.  .  .  ." 

§  100.   Right  to  Discharge. 

When  a  warrant  of  removal  is  refused  the  defendant  is  en- 
titled to  his  discharge.^ 

§  101.  Relief  from  Order  of  Removal  by  Habeas  Corpus. 

There  are  cases  holding  that  even  after  the  district  judge  has 
improperly  ordered  the  removal  of  the  accused  from  one  district 
to  another,  application  may  be  made  for  release  by  a  petition 
for  a  writ  of  habeas  corpus.  No  definite  rule  exists  as  to  when  a 
writ  of  habeas  corpus  will  lie.^  A  petition  for  habeas  corpus  and 
certiorari  may  be  presented  to  the  United  States  Supreme  Court. 
In  these  matters  the  court  will  exercise  a  wide  discretion.^  The 
opinion  of  the  district  judge  on  a  removal  proceeding  reviewing 
the  evidence  is  part  of  the  record  and  takes  the  place  of  a  finding.^ 
On  habeas  corpus,  the  question  is  whether  the  evidence  as  a  whole 
supports  the  finding  of  the  commissioner.     The  court  will  review 

§  100.    1  In    re    Wood,    95    Fed.  (8th    Cir.) ;     United    States   v.    Lee, 

288 ;    Pereles  v.  Weil,  157  Fed.  419 ;  84  Fed.  626 ;  United  States  v.  Fowkes, 

In   re   Corning,    51    Fed.    205,    215 ;  53  Fed.  13,  3  C.  C.  A.  394  (3d  Cir.) ; 

Ex  Parte  Black,  147  Fed.  832 ;  United  United  States  v.  Rogers,  23  Fed.  658. 

States  V.   Lee,   84  Fed.   626 ;    In  re  §  101.    i  Henry    v.     Henkel,     235 

Dana,  68  Fed.  886 ;    United  States  U.  S.  219,  59  L.  ed.  203,  35  S.  C.  54. 

V.  Karlin,  85  Fed.  963 ;  In  re  Greene,  ^  Tinsley    v.    Treat,    205    U.    S. 

52   Fed.    105  ;     Re   James,    18   Fed.  20,  51  L.  ed.  689,  27  S.  C.  430 ;  Henry 

853;    United  States  v.   Greene,   100  i-.  Henkel,  235  U.  S.  219,  59  L.  ed. 

Fed.  941,    183  U.  S.  249,  46  L.  ed.  203,  35  S.  C.  54. 

177,  22  S.  C.  218 ;   S>wart  v.  United  '  Greene    v.    Henkel,    183    U.    S. 

States,  119  Fed.  89,  55  C.  C.  A.  631  249,  46  L.  ed.  177,  22  S.  C.  218. 

VOL.  I  — 6  81 


§  101]  REMOVAL    FOR   TRIAL  [Chap.  XU 

the  evidence  to  ascertain  what  it  really  shows,  and  if  it  finds 
that  all  the  evidence  taken  together  does  not  support  the  com- 
missioner's finding  of  probable  cause,  this  ruling  may  be  dis- 
regarded, and  the  defendant  discharged.^ 

§  102.  Writ  for  Removal  of  Prisoner  from  One  District  to 
Another. 

"  Only  one  writ  or  warrant  is  necessary  to  remove  a  prisoner 
from  one  district  to  another.  One  copy  thereof  may  be  delivered 
to  the  sheriff  or  jailer  from  whose  custody  the  prisoner  is  taken, 
and  another  to  the  sheriff  or  jailer  to  whose  custody  he  is  com- 
mitted, and  the  original  writ,  with  the  marshal's  return  thereon, 
shall  be  returned  to  the  clerk  of  the  district  to  which  he  is  re- 
moved." ^ 

§  103.  Arrest  and  Removal  to  or  from  the  Philippine  Islands. 

"  The  provisions  of  section  ten  hundred  and  foiu-teen  of  the  Re- 
vised Statutes,  so  far  as  applicable,  shall  apply  throughout  the 
United  States  for  the  arrest  and  removal  therefrom  to  the  Philippine 
Islands  of  any  fugitive  from  justice  charged  with  the  commission 
of  any  crime  or  offense  against  the  United  States  within  the  Philip- 
pine Islands,  and  shall  apply  within  the  Philippine  Islands  for 
the  arrest  and  removal  therefrom  to  the  United  States  of  any 
fugitive  from  justice  charged  with  the  commission  of  any  crime 
or  offense  against  the  United  States.  Such  fugitive  may,  by 
any  judge  or  magistrate  of  the  Philippine  Islands  and  agreeably 
to  the  usual  mode  of  process  against  offenders  therein,  be  arrested 
and  imprisoned,  or  bailed,  as  the  case  may  be,  pending  the  issuance 
of  a  warrant  for  h"s  removal  to  the  United  States,  which  warrant 
it  shall  be  the  duty  of  a  judge  of  the  court  of  first  instance  season- 

«  Price  V.  Henkel,  216  U.  S.  488,  46  L.  ed.  534,  22  S.  C.  484 ;   Ornelas 

54  L.  ed.  581,  30  S.  C.  257;   United  v.  Ruiz,  161  U.  S.  502,  40  L.  ed.  787, 

States  V.  Fowkes,  53  Fed.  13,  3  C.  16  S.  C.  689;    Grin  v.  Shine,  187  U. 

C.  A.  394  (3d  Cir.);    United  States  S.  181,  41  L.  ed.  130,  23  S.  C.  98; 

V.  Black,  160  Fed.  431,  87  C.  C.  A.  United  States  v.  Pecahan,  143  Fed. 

401  (7th  Cir.);   In  re  Byron,  18  Fed.  625;    Hyde  v.  Shine,  199  U.  S.  62, 

722 ;    Horner  v.  United  States,   143  50  L.  ed.  90,  25  S.  C.  760. 

U.  S.  570,  36  L.  ed.  266,  12  S.  C.  522 ;  §  102.   i  Rev.  Stat.  §  1029. 
Terlinden  v.  Ames,   184  U.  S.  270, 
82 


Chap.  XII]  ARREST   AND    REMOVAL   TO    PHILIPPINES  [§   103 

ably  to  issue,  and  of  the  officer  or  agent  of  the  United  States 
designated  for  the  purpose  to  execute.  Such  officer  or  agent,  when 
engaged  in  executing  such  warrant  without  the  PhiHppine  Islands, 
shall  have  all  the  powers  of  a  marshal  of  the  United  States,  so  far 
as  such  powers  are  requisite  for  the  prisoner's  safekeeping  and  the 
execution  of  the  warrant."  ^ 

§  103.   I  Act  of  Feb.  9,  1903,  c.  529,  §  1,  32  Stat.  L.  806. 


83 


CHAPTER  XIII 

SEARCHES  AND  SEIZURES 

§  104.  Constitutional  Guarantees. 

§  104  a.  History  of  Amendment  as  Stated  by  Mr.  Justice  Bradley. 

§  104  b.  Constitutional  Guarantees  —  Continued. 

§  105.  Instances  of  Unreasonable  Search  and  Seizure. 

§  106.  Same  —  When  not  "Unreasonable  Search  and  Seizure." 

§  107.  Impounding  Documents. 

§  108.  Papers  Illegally  Seized  Must  Be  Returned  on  Motion. 

§  109.  Evidence  Obtained  under  a  Search  Warrant. 

§  110.  Federal  Legislation. 

§  111.  Judicial  Construction. 

§  112.  Requisites   of   Complaint   or  Infonjiation  for  Issuance   of  Search 

Warrant. 

§  113.  Right  to  Review  Search  Warrant  Orders. 

§  113  a.  Subpoenas  Duces  Tecum  and  Orders  to  Produce. 

§  104.   Constitutional  Guarantees. 

The  language  of  the  Fourth  Amendment  is  as  follows :  "  The 
right  of  the  people  to  be  secure  in  their  persons,  houses,  papers, 
and  effects,  against  unreasonable  searches  and  seizures,  shall  not 
be  violated,  and  no  Warrants  shall  issue,  but  upon  probable  cause, 
supported  by  Oath  or  affirmation,  and  particularly  describing  the 
place  to  be  searched,  and  the  persons  or  things  to  be  seized." 

§  104  a.  History  of  Amendment  as  Stated  by  Mr.  Justice 
Bradley.^ 

"In  order  to  ascertain  the  nature  of  the  proceedings  intended  by 
the  Fourth  Amendment  to  the  Constitution  under  the  terms 
'  unreasonable  searches  and  seizures  ',  it  is  only  necessary  to  recall 
the  contemporary  or  then  recent  history  of  the  controversies  on 

§  104 «.  '  Boyd  V.  United  States,  116  U.  S.  616  (pp.  624-630),  29  L.  ed. 
746,  0  S.  C.  .524. 

84 


Chap.  XIII]  HISTORICAL  statement  [§  104  a 

the  subject,  both  in  this  country  and  in  England.  The  practice 
had  obtained  in  the  colonies  of  issuing  writs  of  assistance  to  the 
revenue  officers,  empowering  them,  in  their  discretion,  to  search 
suspected  places  for  smuggled  goods,  which  James  Otis  pronounced 
*  the  worst  instrument  of  arbitrary  power,  the  most  destructive 
of  English  liberty,  and  the  fundamental  principles  of  law,  that  ever 
was  found  in  an  English  law  book  ' ;  since  they  placed  '  the  liberty 
of  every  man  in  the  hands  of  every  petty  officer.'  ^  This  was  in 
February,  1761,  in  Boston,  and  the  famous  debate  in  which  it 
occurred  was  perhaps  the  most  prominent  event  which  inaugurated 
the  resistance  of  the  colonies  to  the  oppressions  of  the  mother 
country.  'Then  and  there,'  said  John  Adams,  'then  and  there  was 
the  first  scene  of  the  first  act  of  opposition  to  the  arbitrary  claims 
of  Great  Britain.  Then  and  there  the  child  Independence  was 
born.'  These  things,  and  the  events  which  took  place  in  England 
immediately  following  the  argument  about  writs  of  assistance  in 
Boston,  were  fresh  in  the  memories  of  those  who  achieved  our  in- 
dependence and  established  our  form  of  government.  In  the 
period  from  1762,  when  the  North  Briton  was  started  by  John 
Wilkes,  to  April,  1766,  when  the  House  of  Commons  passed  resolu- 
tions condemnatory  of  general  warrants,  whether  for  the  seizure 
of  persons  or  papers,  occurred  the  bitter  controversy  between  the 
English  Government  and  Wilkes  in  which  the  latter  appeared  as 
the  champion  of  popular  rights,  and  was,  indeed,  the  pioneer  in 
the  contest  which  resulted  in  the  abolition  of  some  grievous  abuses' 
which  had  gradually  crept  into  the  administration  of  public  affairs. 
Prominent  and  principal  among  these  was  the  practice  of  issuing 
general  warrants  by  the  Secretary  of  State,  for  searching  private 
houses  for  the  discovery  and  seizure  of  books  and  papers  that  might 
be  used  to  convict  their  owner  of  the  charge  of  libel.  Certain 
numbers  of  the  North  Briton,  particularly  No.  45,  had  been  very 

2  Note  by  the  Court.  —  Cooley's  pp.  469-482 ;   and  see  Paxton's  Case, 

Constitutional  Limitations,   301-303  Id.  51-57,  which  was  argued  in  No- 

(5th  ed.  368,  369).     A  very  full  and  vember    of    the    same    year    (1761). 

interesting  account  of  this  discussion  An  elaborate  history  of  the  writs  of 

will  be  found  in  the  works  of  John  assistance  is  given  in  the  Appendi^i 

Adams,    Vol.    2,    Appendix    A,    pp.  to  Quincy's  Reports,  above  referred 

523-525 ;    Vol.  10,  pp.  183,  233,  244,  to,    written    by    Horace    Gray,    Jr., 

256,   &c.,   and  in  Quincy's  Reports,  Esq.,  now  a  member  of  tliis  court. 

85 


§  104  a]  SEARCHES   AND    SEIZURES  [Chap.  XIll 

bold  in  denunciation  of  the  government,  and  were  esteemed 
heinously  libellous.  By  authority  of  the  secretary's  warrant 
Wilkes's  house  was  searched,  and  his  papers  were  indiscriminately 
seized.  For  this  outrage  he  sued  the  perpetrators  and  obtained 
a  verdict  of  £1000  against  Wood,  one  of  the  party  who  made  the 
search,  and  £4000  against  Lord  Halifax,  the  Secretary  of  State  who 
issued  the  warrant.  The  case,  however,  which  will  always  be 
celebrated  as  being  the  occasion  of  Lord  Camden's  memorable 
discussion  of  the  subject,  was  that  of  Entick  v.  Carrington  and 
Three  Other  King's  Messengers,  reported  at  length  in  19  Howell's 
State  Trials,  1029.  The  action  was  trespass  for  entering  the  plain- 
tiff's dwelling-house  in  November,  1762,  and  breaking  open  his 
desks,  boxes,  &c.,  and  searching  and  examining  his  papers.  The 
jury  rendered  a  special  verdict,  and  the  case  was  twice  solemnly 
argued  at  the  bar.  Lord  Camden  pronounced  the  judgment  of  the 
court  in  Michaelmas  Term,  1765,  and  the  law  as  expounded  by 
him  has  been  regarded  as  settled  from  that  time  to  this,  and  his 
great  judgment  on  that  occasion  is  considered  as  one  of  the  land- 
marks of  English  liberty.  It  was  welcomed  and  applauded  by 
the  lovers  of  liberty  in  the  colonies  as  well  as  in  the  mother  country. 
It  is  regarded  as  one  of  the  permanent  monuments  of  the  British 
Constitution,  and  is  quoted  as  such  by  the  English  authorities  on 
that  subject  down  to  the  present  time.^  As  every  American  states- 
man, during  our  revolutionary  and  formative  period  as  a  nation, 
was  undoubtedly  familiar  with  this  monument  of  English  freedom, 
and  considered  it  as  the  true  and  ultimate  expression  of  constitu- 
tional law,  it  may  be  confidently  asserted  that  its  propositions  were 
in  the  minds  of  those  who  framed  the  Fourth  Amendment  to  the 
Constitution,  and  were  considered  as  sufficiently  explanatory  of 
what  was  meant  by  unreasonable  searches  and  seizures.  We 
think,  therefore,  it  is  pertinent  to  the  present  subject  of  discussion 
to  quote  somewhat  largely  from  this  celebrated  judgment.  After 
describing  the  power  claimed  by  the  Secretary  of  State  for  issuing 
general  search  warrants,  and  the  manner  in  which  they  were  exe- 
cuted, Lord  Camden  says :   '  Such  is  the  power,  and,  therefore,  one 

'  Note  by  the  Court.  —  See  May's'  11;     Broom's    Constitutional    Law, 

Constitutional   History  of  England,  558;   Cox's  Institutions  of  the  Eng- 

Vol.  3  (American  ed.,  Vol.  2),  chap.  lish  Government,  437. 
86 


Chap.  XIII]  HISTORICAL  observations  [§  104  a 

would  naturally  expect  that  the  law  to  warrant  it  should  be  clear 
in  proportion  as  the  power  is  exorbitant.  If  it  is  law,  it  will  be 
found  in  our  books ;  if  it  is  not  to  be  found  there,  it  is  not  law. 
The  great  end  for  which  men  entered  into  society  was  to  secure 
their  property.  That  right  is  preserved  sacred  and  incommuni- 
cable in  all  instances  where  it  has  not  been  taken  away  or  abridged 
by  some  public  law  for  the  good  of  the  whole.  The  cases  where 
this  right  of  property  is  set  aside  by  positive  law  are  various.  Dis- 
tresses, executions,  forfeitures,  taxes,  &c.,  are  all  of  this  descrip- 
tion, wherein  every  man  by  common  consent  gives  up  that  right  for 
the  sake  of  justice  and  the  general  good.  By  the  laws  of  England, 
every  invasion  of  private  property,  be  it  ever  so  minute,  is  a  tres- 
pass. No  man  can  set  his  foot  upon  my  ground  without  my  license, 
but  he  is  liable  to  an  action  though  the  damage  be  nothing  ;  which 
is  proved  by  every  declaration  in  trespass  where  the  defendant  is 
called  upon  to  answer  for  bruising  the  grass  and  even  treading 
upon  the  soil.  If  he  admits  the  fact,  he  is  bound  to  show,  by  way 
of  justification,  that  some  positive  law  has  justified  or  excused  him. 
The  justification  is  submitted  to  the  judges,  who  are  to  look  into 
the  books,  and  see  if  such  a  justification  can  be  maintained  by  the 
text  of  the  statute  law,  or  by  the  principles  of  the  common  law.  If 
no  such  excuse  can  be  found  or  produced,  the  silence  of  the  books 
is  an  authority,  against  the  defendant,  and  the  plaintiff  must  have 
judgment.  According  to  this  reasoning,  it  is  now  incumbent  upon 
the  defendants  to  show  the  law  by  which  this  seizure  is  warranted. 
If  that  cannot  be  done,  it  is  a  trespass.  Papers  are  the  owner's 
goods  and  chattels;  they  are  his  dearest  property;  and  are  so 
far  from  enduring  a  seizure,  that  they  will  hardly  bear  an  inspec- 
tion ;  and  though  the  eye  cannot  by  the  laws  of  England  be  guilty 
of  a  trespass,  yet  where  private  papers  are  removed  and  carried 
away  the  secret  nature  of  those  goods  will  be  an  aggravation  of  the 
trespass,  and  demand  more  considerable  damages  in  that  respect. 
Where  is  the  written  law  that  gives  any  magistrate  such  a  power  ? 
I  can  safely  answer,  there  is  none ;  and,  therefore,  it  is  too  much  for 
us,  without  such  authority,  to  pronounce  a  practice  legal  which 
would  be  subversive  of  all  the  comforts  of  society.  But  though  it 
cannot  be  maintained  by  any  direct  law,  yet  it  bears  a  resemblance, 
as  was  urged,  to  the  known  case  of  search  and  seizure  for  stolen 

87 


§  104  a]  SEARCHES   AND    SEIZURES  [Chap.  XIII 

goods.  I  answer  that  the  difference  is  apparent.  In  the  one,  I 
am  permitted  to  seize  my  own  goods,  which  are  placed  in  the  hands 
of  a  pubhc  officer,  till  the  felon's  conviction  shall  entitle  me  to 
restitution.  In  the  other,  the  party's  own  property  is  seized 
before  and  without  conviction,  and  he  has  no  power  to  reclaim 
his  goods,  even  after  his  innocence  is  declared  by  acquittal.  The 
case  of  searching  for  stolen  goods  crept  into  the  law  by  imper- 
ceptible practice.  No  less  a  person  than  my  Lord  Coke  denied 
its  legality,  4  Inst.  176  ;  and,  therefore,  if  the  two  cases  resembled 
each  other  more  than  they  do,  we  have  no  right,  without  an  act 
of  Parliament,  to  adopt  a  new  practice  in  the  criminal  law,  which 
was  never  yet  allowed  from  all  antiquity.  Observe,  too,  the  cau- 
tion with  which  the  law  proceeds  in  this  singular  case.  There  must 
be  a  full  charge  upon  oath  of  a  theft  committed.  The  owner  must 
swear  that  the  goods  are  lodged  in  such  a  place.  He  must  attend 
at  the  execution  of  the  warrant,  to  show  them  to  the  officer,  who 
must  see  that  they  answer  the  description.  ...  If  it  should  be 
said  that  the  same  law  which  has  with  so  much  circumspection 
guarded  the  case  of  stolen  goods  from  mischief,  would  likewise 
in  this  case  protect  the  subject  by  adding  proper  checks;  would 
require  proofs  beforehand ;  would  call  up  the  servant  to  stand  by 
and  overlook ;  would  require  him  to  take  an  exact  inventory,  and 
deliver  a  copy;  my  answer  is,  that  all  these  precautions  would 
have  been  long  since  established  by  law,  if  the  power  itself  had  been 
legal ;  and  that  the  want  of  them  is  an  undeniable  argument  against 
the  legality  of  the  thing.'  Then,  after  showing  that  these  general 
warrants  for  search  and  seizure  of  papers  originated  with  the  Star 
Chamber,  and  never  had  any  advocates  in  Westminster  Hall 
except  Chief  Justice  Scroggs  and  his  associates.  Lord  Camden 
proceeds  to  add :  '  Lastly,  it  is  urged  as  an  argument  of  utility, 
that  such  a  search  is  a  means  of  detecting  offenders  by  discovering 
evidence.  I  wish  some  cases  had  been  shown,  where  the  law 
forceth  evidence  out  of  the  owner's  custody  by  process.  There  is 
no  process  against  papers  in  civil  causes.  It  has  been  often  tried, 
but  never  prevailed.  Nay,  where  the  adversary  has  by  force  or 
fraud  got  possession  of  your  own  proper  evidence,  there  is  no  way 
to  get  it  back  but  by  action.  In  the  criminal  law  such  a  proceed- 
ing was  never  heard  of ;  and  yet  there  are  some  crimes,  such,  for 
88 


Chap.  XIII]  historical  observations  [§  104  a 

instance,  as  murder,  rape,  robbery,  and  house-breaking,  to  say 
nothing  of  forgery  and  perjury,  that  are  more  atrocious  than  Hbel- 
ling.  But  our  law  has  provided  no  paper-search  in  these  cases  to 
help  forward  the  conviction.  Whether  this  proceedeth  from  the 
gentleness  of  the  law  towards  criminals,  or  from  a  consideration 
that  such  a  power  would  be  more  pernicious  to  the  innocent  than 
useful  to  the  public,  I  will  not  say.  It  is  very  certain  that  the  law 
obligeth  no  man  to  accuse  himself ;  because  the  necessary  means  of 
compelling  self-accusation,  falling  upon  the  innocent  as  well  as 
the  guilty,  would  be  both  cruel  and  unjust ;  and  it  would  seem, 
that  search  for  evidence  is  disallowed  upon  the  same  principle. 
Then,  too,  the  innocent  would  be  confounded  with  the  guilty.' 
After  a  few  further  observations  his  Lordship  concluded  thus : 
*  I  have  now  taken  notice  of  ever;^i:hing  that  has  been  urged  upon 
the  present  point ;  and  upon  the  whole  we  are  all  of  opinion,  that 
the  warrant  to  seize  and  carry  away  the  party's  papers  in  the  case 
of  a  seditious  libel,  is  illegal  and  void.'  ^  The  principles  laid  down 
in  this  opinion  affect  the  very  essence  of  constitutional  liberty  and 
security.  They  reach  farther  than  the  concrete  form  of  the  case 
then  before  the  court,  with  its  adventitious  circumstances ;  they 
apply  to  all  invasions  on  the  part  of  the  government  and  its  em- 
ployees of  the  sanctity  of  a  man's  home  and  the  privacies  of  life. 
It  is  not  the  breaking  of  his  doors,  and  the  rummaging  of  his 
drawers,  that  constitutes  the  essence  of  the  offence ;  but  it  is  the 
invasion  of  his  indefeasible  right  of  personal  security,  personal 
liberty  and  private  property,  where  that  right  has  never  been 
forfeited  by  his  conviction  of  some  public  offence,  —  it  is  the  in- 
vasion of  this  sacred  right  which  underlies  and  constitutes  the 
essence  of  Lord  Camden's  judgment.  Breaking  into  a  house  and 
opening  boxes  and  drawers  are  circumstances  of  aggravation ; 
but  any  forcible  and  compulsory  extortion  of  a  man's  own  testi- 
mony or  of  his  private  papers  to  be  used  as  evidence  to  convict  him 
of  crime  or  to  forfeit  his  goods,  is  within  the  condemnation  of  that 

*  Note  by  the  Court.  —  See  further  Sedgwick  on  Stat,  and  Const.  Law, 

as   to   searches   and   seizures,    Story  2d    ed.     498;     Wharton     Com.    on 

on  the  Constitution,   §§1901,   1902,  Amer.    Law,     §560;     Robinson    v. 

and  notes ;    Cooley's  jDonstitutional  Richardson,  13  Gray,  454. 
Limitations,     299     (5th    ed.     365); 

89 


§  104  a]  SEARCHES   AND    SEIZURES  [Chap.  XIII 

judgment.  In  this  regard  the  Fourth  and  Fifth  Amendments  run 
almost  into  each  other.  Can  we  doubt  that  when  the  Fourth  and 
Fifth  Amendments  to  the  Constitution  of  the  United  States  were 
penned  and  adopted,  the  language  of  Lord  Camden  was  relied  on 
as  expressing  the  true  doctrine  on  the  subject  of  searches  and 
seizures,  and  as  furnishing  the  true  criteria  of  the  reasonable  and 
'  unreasonable '  character  of  such  seizures  ?  Could  the  men  who  pro- 
posed those  amendments,  in  the  light  of  Lord  Camden's  opinion, 
have  put  their  hands  to  a  law  like  those  of  March  3,  1863,  and 
March  2, 1867,  before  recited  ?  If  they  could  not,  would  they  have 
approved  the  5th  section  of  the  act  of  June  22,  1874,  which  was 
adopted  as  a  substitute  for  the  previous  laws  ?  It  seems  to  us  that 
the  question  cannot  admit  of  a  doubt.  They  never  would  have 
approved  of  them.  The  struggles  against  arbitrary  power  in  which 
they  have  been  engaged  for  more  than  twenty  years,  would  have 
been  too  deeply  engraved  in  their  memories  to  have  allowed  them 
to  approve  of  such  insidious  disguises  of  the  old  grievance  which 
they  had  so  deeply  abhorred." 

§  104  b.   Constitutional  Guarantees  —  Continued. 

The  duty  of  enforcing  the  rights  guaranteed  by  this  Amendment 
rests  upon  all  intrusted  with  the  administration  of  the  Federal 
laws.^  The  general  rule  at  common  law  was  that  no  one  can  break 
in  doors  without  a  warrant  issued  by  a  justice  of  the  peace  upon 
probable  cause  and  supported  by  oath.^  All  alike  are  protected  by 
the  Amendment,  whether  accused  of  crime  or  not.^  It  was  adopted 
as  a  result  of  past  experience  to  insure  personal  liberty  "*  and  was 
intended  as  a  positive  check  upon  the  powers  of  Congress.^     "  It 

§  104  b.   » In    re    Tri-State    Coal  Biddle,  8  Wheat.   (U.  S.)   88,  5  L. 

&  Coke  Co.,  253  Fed.  605;    Weeks  ed.   547;    Weeks  v.   United   States, 

V.    United   States,    232    U.    S.    383,  232  U.  S.  383,  58  L.  ed.  652,  34  S.  C. 

58  L.  ed.  652,  34  S.  C.  341.  341;    Veeder  v.  United  States,  252 

»2   Burns   Justice,   348,    2   Hale,  Fed.  414,  246  U.  S.  675,  62  L.  ed. 

P.  C.  88,  96 ;   McLennon  v.  Richard-  933,  38  S.  C.  428 ;    In  re  Tri-State 

son,  15  Gray  (Mass.),  74.  Coal   &   Coke   Co.,    253    Fed.    605; 

•Weeks    v.    United    States,    232  Boyd  v.   United   States,    116   U.   S. 

U.  S.  383,  58  L.  ed.  6.52,  34  S.  C.  341.  616,  29  L.  ed.  746,  6  S.  C.  524;   Ex 

*  Ex     Parte     Milligan,     4     Wall.  Parte  Jackson,  96  U.  S.  727,  24  L. 

(U.  S.)  120,  18  L.  ed.  281.  ed.  877 ;    Hale  v.  Henkel,  201  U.  S. 

»  Luther  v.  Borden,  7  How.   (U.  43,  50  L.  ed.  652,  26  S.  C.  370. 
S.)   60,    12   L.   ed.   581;    Greene  v. 
90 


Chap.  XITI]  CONSTITUTIONAL    GUARANTEES  [§  105 

cannot  be  too  often  repeated,"  said  Mr.  Justice  Harlan/  "that  the 
principles  that  embody  the  essence  of  constitutional  liberty  and 
security  forbid  all  invasions  on  the  part  of  the  Government  and 
its  employees  of  the  sanctity  of  a  man's  home  and  the  privacies  of 
his  life.  ..."  A  search,  to  be  lawful,  and  therefore  reasonable, 
must  be  confined  to  the  place,  and  the  seizure  to  the  things  par- 
ticularly described,  otherwise,  the  effect  would  be  that  a  search 
warrant  providing  for  the  search  of  a  particular  place  and  the 
seizure  of  particular  things  would  become  a  general  warrant  when 
placed  in  the  hands  of  the  government  officers.'^  In  addition  to 
having  the  proper  warrant,  the  officer  must  prove  his  identity,^ 
and  disclose  the  contents  of  the  warrant.^  The  Amendment 
has  no  application  to  State  process,  unless  the  writ  is  in  aid  of  a 
Federal  statute,^*^  nor  to  civil  proceedings  for  the  recovery  of  debts 
of  which  a  search  warrant  is  not  made  part."  The  government  can 
make  no  use  of  papers  or  books  illegally  seized  even  though  it 
subsequently  returns  same.  It  cannot  copy  the  papers  and  give 
notice  to  produce  the  originals ;  nor  can  an  indictment  be  predi- 
cated on  any  such  evidence.  The  constitutional  amendment  is 
applicable  to  corporations  as  well  as  to  individuals.  The  essence 
of  the  constitutional  provision  forbidding  the  acquisition  of  evi- 
dence in  a  certain  way  is  that  not  merely  evidence  so  acquired 
shall  not  be  used  before  the  Court,  but  that  it  shall  not  be  used 
at  a\V 

§  105.   Instances  of  Unreasonable  Search  and  Seizure. 

Taking  of  business  papers  from  a  place  of  business  by  a  customs 
officer,  without  a  warrant  but  by  defendant's  permission  given 
under  a  promise  or  threat  that  it  would  be  better  for  him  if  he  gave 
them  what  they  wanted,  was  held  to  be  a  violation  of  the  Amend- 

•  Interstate    Commerce    Commis-  "  Den    v.     Hoboken     Land     and 

sion  V.  Brimson,  154  U.  S.  447,  449,  Improvement  Co.,   18  How.  (U.  S.) 

38  L.  ed.  1047,  14  S.  C.  1125.  272,  15  L.  ed.  372. 

^  United  States  v.  Friedberg,  233  "  Silverthorne    Lumber    Co.    and 

Fed.  313.  Silverthorne  v.  United  States,  decided 

8  State  V.  Green,  66  Mo.  631.  January   26,    1920    (U.   S.   Supreme 

«2   Hale,    P.    C.    116;     Drennon  Court  Adv.   Sheets,   Feb.   15,   1920, 

V.  People,  10  Mich.  169.  No.  7,  Lawyers  Co-op.  Edition). 

"Smith   V.    Maryland,    18   How. 
(U.  S.)  71,  15  L.  ed.  269. 

91 


§  105]  SEARCHES   AND    SEIZURES  [Chap.  Xlll 

ment  and  the  papers  so  seized  were  not  admissible  in  evidence 
against  the  defendant  in  a  criminal  trial. ^  The  taking,  without  a 
warrant,  of  books  and  papers  from  one's  office  after  his  arrest  on 
a  criminal  charge  is  an  unreasonable  search  seizure.^  Refusal  by 
postmaster  to  deliver  mail  addressed  to  a  private  citizen,  consti- 
tutes a  violation  of  the  constitutional  guarantee.^  Although 
the  city  charter  empowered  the  police  to  carefully  inspect  small 
licensed  places,  the  court  ^  held  that  this  did  not  allow  them 
to  enter  by  force.  Papers  and  effects  taken  from  defendant's 
person  or  house  without  a  search  warrant  as  provided  by  law 
cannot  be  offered  in  evidence  against  the  defendant,  and  on 
motion  of  the  defendant  before  trial,  will  be  ordered  returned 
to  him.  Such  seizure  is  in  direct  violation  of  the  constitutional 
rights  of  the  defendant,  guaranteeing  the  right  of  the  people  to 
be  secure  in  their  papers  against  unreasonable  searches  and  seizures 
except  by  due  process  of  law.  It  is  too  late  to  make  this  appli- 
cation at  the  trial  or  after  trial  commenced,^  The  Court  in 
a  criminal  prosecution  has  no  right  "to  retain  for  the  purpose  of 
evidence  the  letters  and  correspondence  of  the  accused,  seized 
in  his  house  in  his  absence  and  without  his  authority,  by  a  United 
States  Marshal  holding  no  warrant  for  his  arrest  and  none  for  the 
search  of  his  premises."  ^  In  Weeks  v.  United  States,^  the  dis- 
tinction is  made  between  papers  incidentally  wrongfull}'  seized  in 
the  execution  of  a  legal  warrant,  which  may  be  used  in  evidence  ^ 
and  the  case  where  an  application  in  the  cause  for  their  return  has 
been  made  by  the  accused  before  trial.  Thus,  under  a  search 
warrant  authorizing  the  search,  for  leaf  tobacco,  of  the  place  of 
business  of  one  charged  with  violating  the  internal  revenue  laws, 

§  105.   1  United  States  v.  Abrams,  Fed.    4S1,    147   C.    C.    A.    367    (2d 

230  Fed.  313.  Cir.). 

'  United  States  v.  Mounday,  208  « Weeks    v.    United    States,    232 

Fed.  186 ;    United  States  v.  Mcllie,  U.  S.  383,  393,  58   L.  ed.  652,   34  S. 

194  Fed.  894.  C.  341.    See  also  Silverthorne  Lumber 

»  Hoover  v.   McChesney,  81   Fed.  Co.  and  Silverthorne  v.  United  States, 

472.  decided  January  26,  1920  (U.  S.  Su- 

*  Phelps    V.    McAdoo,    94    N.    Y.  preme  Court  Adv.  Sheets,   Feb.   15, 

Supp.  265.  1920,  No.  7,  Lawyers  Co-op.  Edition). 

»  Weeks    v.    United    States,    232  ''  232  U.  S.  383. 

U.  S.  383,  58  L.  ed.  652,  34  S.  C.  « Adams  v.  New  York,  192  U.  S. 

341 ;     Flagg   v.    United   States,    233  585,  48  L.  ed.  575,  24  S.  C.  372. 
92 


Chap.  XIII]  IMPOUNDING  DOCUMENTS  [§  107 

his  private  papers,  both  at  his  place  of  business  and  at  his  residence, 
were  examined  and  seized.  Before  the  trial  he  demanded  return 
of  the  papers.  The  papers  were  ordered  to  be  returned,  though 
desired  for  use  in  the  prosecution,  under  the  rule  stated.® 

§  106.  Same — When  Not  "Unreasonable  Search  and  Seizure." 
When  a  document  is  taken  from  a  person  while  in  the  act  of 
committing  a  crime,  which  document  furnished  proof  of  the  corpus 
delicti,  the  constitutional  privileges  against  searches  and  seizure  do 
not  apply. ^  The  depositing  of  records,  documents  and  papers  of 
a  defendant  railway  company  with  the  chief  clerk  of  its  legal  de- 
partment for  use  by  counsel  does  not  make  them  "  confidential  ", 
so  as  to  be  within  the  protection  of  the  Amendment."  A  letter 
taken  under  a  duly  issued  search  warrant  will  not  be  returned  on 
petition  alleging  that  use  of  the  letter  will  amount  to  compelling  the 
defendant  to  give  evidence  against  himself.  This  question  must 
be  determined  on  the  trial  when  the  letter  is  offered  in  evidence.^ 
A  defendant  may  waive  the  manner  and  method  of  acquisition  of 
his  papers,  and  thereupon  the  constitutional  objection  is  removed/ 

§  107.   Impounding  Documents. 

In  Perlman  Rim  Corporation  v.  Firestone  Tire  and  Rubber 
Company  ^  Judge  Manton  held  that  where  a  party  in  any  action 
voluntarily  produces  in  court  certain  papers  and  they  are  ordered 
impounded  by  the  court,  such  action  on  the  part  of  the  court  does 
not  fall  within  the  inhibition  of  the  Sixth  Amendment  relating  to 
unreasonable  searches  and  seizures.  This  decision  was  affirmed 
by  the  United  States  Supreme  Court.  This  case  is  reported  under 
the  title  of  Perlman  t.  United  States.^  The  Supreme  Court  also 
held  that  orders  denying  a  motion  to  return  papers  claiming  to  have 
been  seized  illegally  are  final  and  appealable.  Where,  however, 
documents  are  taken  from  a  defendant  by  force,  he  not  having 

» United  States  v.  Friedberg,  233  » United    States    v.    Gouled,    253 

Fed.  313.  Fed.  770. 

§  106.   1  United  States  v.   Welsh,  « United    States    v.    Gouled,    253 

247  Fed.  239.  Fed.  770. 

'  United    States    v.    PMladelphia  §  107.   i  244  Fed.  304. 

&  R.  Ry.  Co.,  225  Fed.  301.  *  247  U.   S.,  7,  62  L.  ed.  950,  38 

S.  C.  417. 

93 


§  107]  SEARCHES  AND    SEIZURES  [Chap.  XIII 

voluntarily  produced  or  surrendered  same,  their  use  before  a  grand 
jury  would  constitute  a  compulsory  production,  which  is  pro- 
hibited by  the  Constitution.^ 

§  108.   Papers  Illegally  Seized  Must  Be  Returned  on  Motion. 

The  Federal  District  Court  has  authority  to  order  on  motion 
the  return  of  papers  and  effects  in  the  possession  of  the  United 
States  Attorney  and  other  officers  of  the  court  which  have  been 
obtained  illegally  or  unconstitutionally  from  a  defendant  by 
government  officers  while  acting  under  color  of  their  office.^  Ac- 
quiescence by  an  agent  of  one  whose  property  has  been  illegally 
seized  does  not  bar  relief  from  the  illegal  seizure.^  And  documents 
seized  on  a  search  warrant,  having  a  bearing  upon  the  case  in  which 
the  search  warrant  was  issued,  must  be  returned  to  the  custody  of 
the  person  from  whom  they  were  taken.  They  cannot  be  used 
as  a  basis  for  other  indictments  charging  different  crimes.^ 

§  109.   Evidence  Obtained  imder  a  Search  Warrant. 

Where  a  search  warrant  is  issued  which  is  regular  on  its  face  di- 
recting certain  premises,  other  than  the  defendant's,  to  be  searched, 
and  incriminating  documents  are  found  therein,  same  may  be 
admitted  in  evidence,  because  said  documents  were  not  technically 
in  the  defendant's  possession  and  consequently  were  not  taken 
from  him.^     But  where  documents  or  other  property  are  obtained 

>  Silverthorne     Lumber     Co.     v.  Fed.  318;    United  States  v.  McHie, 

United    States    (Decided    by   U.   S.  194    Fed.    894;     United    States    v. 

Supreme  Court   January  26,  1920) ;  Abrams,  230  Fed.  313 ;   In  re  Uosen- 

Ballman  v.  Fagin,  200  U.  S.  186,  50  wasser  Bros.,  254  Fed.  171 ;    United 

L.  ed.  433,  26  S.  C.  212;  WUson  v.  States  v.  Priedberg,  233  Fed.  313. 

United  States,  221  U.  S.  361,  55  L.  « In  re  Tri-State  Coal  and  Coke 

ed.   771,   31   S.   C.   538;    Ex  Parte  Co.,  253  Fed.  605. 

Chapman,     153    Fed.    371;     In    re  'United     States     v.     Mills,     185 

Kanter,  117  Fed.  356;    In  re  Hess,  Fed.  318;    Veeder  v.  United  States, 

134  Fed.  109 ;  United  States  v.  Mills,  252  Fed.  414   (C.  C.  A.  7th  Cir.) ; 

185    Fed.    318;     United    States    v.  Certiorari  denied  in  246  U.  S.  675, 

Abrams,  230  Fed.  313.  62  L.  ed.  933,  38  S.  C.  428. 

§  108.   1  Weeks  v.  United  States,  §  109.   »  Schenck  v.  United  States, 

232  U.  S.  370,  58  L.  ed.  652,  34  S.  C.  decided   March    3,  1919 ;    Adams  v. 

341 ;    Wise  v.  Mills,  220  U.  S.  549,  New  York,  192  U.  S.  585,  48  L.  ed. 

55  L.  ed.  579,  31  S.  C.  597;   Wise  575,  24  S.  C.  372;   Weeks  v.  United 

t;.  Henkcl,  220  U.  S.  556,  55  L.  ed.  States,  242  U.  S.  383,  58  L.  ed.  652, 

681;     United    States   v.    Mills,    185  34   S.   C.   341;    Johnson   v.   United 

94 


Chap.  XIII]  FEDERAL    LEGISLATION  [§  110 

illegally  without  a  search  warrant,  the  same  cannot  be  introduced 
in  evidence  if  the  defendant  seasonably  applies  to  the  court  for 
their  return  to  him.-  Similarly,  where  the  documents  were  pro- 
cured by  means  of  a  void  warrant.^  On  the  other  hand,  it  was 
held  that  the  inliibition  is  a  limitation  upon  the  power  of  the 
government  to  make  such  searches  and  seizures  for  its  own  bene- 
fit, and  has  no  reference  to  unauthorized  acts  of  individuals,  and 
therefore  the  government  may  make  use  of  evidence  obtained  by 
an  individual  by  an  illegal  search  or  seizure.^ 

§110.   Federal  Legislation. 

The  statute  recently  passed  ^  dealing  with  the  subject  of  search 
warrants  is  as  follows  ^ :  "1.  Authority  to  issue  —  A  search  warrant 
authorized  by  this  title  may  be  issued  by  a  judge  of  a  United 
States  District  Court  or  by  a  judge  of  a  State  or  Territorial  court 
of  record,  or  by  a  United  States  commissioner  for  the  district 
wherein  the  property  sought  is  located.  2.  Grounds  for  issue  —  A 
search  warrant  may  be  issued  under  this  title  upon  either  of  the 
following  grounds  :  (a)  When  the  property  was  stolen  or  embezzled 
in  violation  of  a  law  of  the  United  States ;  in  which  case  it  may 
be  taken  on  the  warrant  from  any  house  or  other  place  in  which 
it  is  concealed,  or  from  the  possession  of  the  person  by  whom  it  was 
stolen  or  embezzled,  or  from  any  person  in  whose  possession  it  may 
be.  (6)  When  the  property  was  used  as  the  means  of  committing 
a  felony ;  in  which  case  it  may  be  taken  on  the  warrant  from  any 

States,  228  U.  S.  457,  57  L.  ed.  919,  '  United  States  v.  Friedberg,  233 

33  S.  C.  572.     In  the  Schenck  case,  Fed.  313. 

the  Court  remarked:    "The  notion  ''Bacon  v.  United  States,  97  Fed. 

that  evidence  even  directly  proceed-  35,  40,  38  C.  C.  A.  37   (8th  Cir.), 

ing  from  the  defendant  in  a  criminal  175  U.  S.  726,  44  L.  ed.  339,  20  S.  C. 

proceeding  is  excluded  in   all  cases  1022. 

by  the  Fifth  Amendment  is  plainly  §  110.   '  Act  of  June  15th,   1917, 

unsound,"     citing    Holt    v.     United  c.   30,    title    XI,    §  23,    40    Stat.  *L. 

States,  218  U.  S.  245,  54  L.  ed.  1021,  230. 

31  S.  C.  2.  Note:  For  a  further  ^  "^^  ^g^^  ^^  punish  acts  of  inter- 
exposition  of  the  subject  as  to  the  ference  with  foreign  relations,  the 
competency  of  evidence  procured  neutrality,  and  the  foreign  commerce 
by  an  illegal  seizure,  see  self-in-  of  the  United  States,  to  punish 
CKiMiNATiON.  espionage,  and  better  to  enforce 
'  Weeks  v.  United  States,  242  the  criminal  laws  of  the  United  States 
U.  S.  383,  58  L.  ed.  652,^34  S.  C.  341.  and  for  other  purposes." 

95 


§   no]  SEARCHES    AND    SEIZURES  [Chap.  XIII 

house  or  other  place  in  which  it  is  concealed,  or  from  the  possession 
of  the  person  by  whom  it  was  used  in  the  commission  of  the  offense, 
or  from  any  person  in  whose  possession  it  may  be.  (c)  When  the 
property,  or  any  paper,  is  possessed,  controlled,  or  used  in  violation 
of  section  twenty-two  of  this  title ;  in  which  case  it  may  be  taken 
on  the  warrant  from  the  person  violating  said  section,  or  from  any 
person  in  whose  possession  it  may  be,  or  from  any  house  or  other 
place  in  which  it  is  concealed.  3.  Probable  cause  and  affidavit  — 
A  search  warrant  cannot  be  issued  but  upon  probable  cause, 
supported  by  affidavit,  naming  or  describing  the  person  and  par- 
ticularly describing  the  property  and  the  place  to  be  searched.  4. 
Examination  of  applicant  and  witnesses ;  affidavits  and  deposi- 
tions— The  judge  or  commissioner  must,  before  issuing  the  warrant, 
examine  on  oath  the  complainant  and  any  witness  he  may  produce, 
and  require  their  affidavits  or  take  their  depositions  in  writing  and 
cause  them  to  be  subscribed  by  the  parties  making  them.  5. 
Affidavits  and  depositions  —  The  affidavits  or  depositions  must  set 
forth  the  facts  tending  to  establish  the  grounds  of  the  application 
or  probable  cause  for  believing  that  they  exist.  6.  Issue;  con- 
tents—  If  the  judge  or  commissioner  is  thereupon  satisfied  of  the 
existence  of  the  grounds  of  the  application  or  that  there  is  probable 
cause  to  believe  their  existence,  he  must  issue  a  search  warrant, 
signed  by  him  with  his  name  of  office  to  a  civil  officer  of  the  United 
States  duly  authorized  to  enforce  or  assist  in  enforcing  any  law 
thereof,  or  to  a  person  so  duly,  authorized  by  the  President  of  the 
United  States,  stating  the  particular  grounds  or  probable  cause  for 
its  issue  and  the  names  of  the  persons  whose  affidavits  have  been 
taken  in  support  thereof,  and  commanding  him  forthwith  to  search 
the  person  or  place  named,  for  the  property  specified,  and  to  bring 
it  before  the  judge  or  commissioner.  7.  Service  —  A  search  war- 
rant may  in  all  cases  be  served  by  any  of  the  officers  mentioned  in 
its  direction,  but  by  no  other  person,  except  in  aid  of  the  officer 
on  his  requiring  it,  he  being  present  and  acting  in  its  execution. 
8.  Same  ;  breaking  and  entering — The  officer  may  break  open  any 
outer  or  inner  door  or  window  of  a  house,  or  any  part  of  a  house, 
or  anything  therein,  to  execute  the  warrant,  if,  after  notice  of  his 
authority  and  purpose,  he  is  refused  admittance.  9.  Same; 
Breaking  and  entering  to  liberate  detained  person  aiding  in  execu- 
96 


Chap.  XIII]  FEDERAL   LEGISLATION  [§  110 

tion  of  warrant  —  He  may  break  open  any  outer  or  inner  door  or 
window  of  a  house  for  the  purpose  of  Hberating  a  person  who, 
having  entered  to  aid  him  in  the  execution  of  the  warrant,  is  de- 
tained therein,  or  when  necessary  for  his  own  hberation.  10. 
Same;  daytime — The  judge  or  commissioner  must  insert  a  direc- 
tion in  the  warrant  that  it  be  served  in  the  day  time,  unless  the 
affidavits  are  positive  that  the  property  is  on  the  person  or  in  the 
place  to  be  searched,  in  which  case  he  may  insert  a  direction  that 
it  be  served  at  any  time  of  the  day  or  night.  11.  Same;  time 
for  and  return — A  search  warrant  must  be  executed  and  returned 
to  the  judge  or  commissioner  who  issued  it  within  ten  days  after  its 
date  ;  after  the  expiration  of  this  time  the  warrant,  unless  executed, 
is  void.  12.  Same ;  copy  and  receipt  for  property  taken  to  per- 
son from  whom  taken — When  the  officer  takes  property  under  the 
warrant,  he  must  give  a  copy  of  the  warrant  together  with  a  receipt 
for  the  property  taken  (specifying  it  in  detail)  to  the  person  from 
whom  it  was  taken  by  him,  or  in  whose  possession  it  was  found ; 
or,  in  the  absence  of  any  person,  he  must  leave  it  in  the  place  where 
he  found  the  property.  13.  Return  ;  contents — The  officer  must 
forthwith  return  the  warrant  to  the  judge  or  commissioner  and 
deliver  to  him  a  written  inventory  of  the  property  taken,  made 
publicly  or  in  the  presence  of  the  person  from  whose  possession  it 
was  taken,  and  of  the  applicant  for  the  warrant,  if  they  are  present, 
verified  by  the  affidavit  of  the  officer  at  the  foot  of  the  inventory  and 
taken  before  the  judge  or  commissioner  at  the  time,  to  the  follow- 
ing effect :  'I,  R.  S.,  the  officer  by  whom  this  warrant  was  executed, 
do  swear  that  the  above  inventory  contains  a  true  and  detailed 
account  of  all  the  property  taken  by  me  on  the  warrant.'  14. 
Same ;  copy  of  inventory  for  person  from  whom  property  taken  — 
The  judge  or  commissioner  must  thereupon,  if  required,  deliver  a 
copy  of  the  inventory  to  the  person  from  whose  possession  the  prop- 
erty was  taken  and  to  the  applicant  for  the  warrant.  15.  Taking 
testimony  —  If  the  grounds  on  which  the  warrant  was  issued  be 
controverted,  the  judge  or  commissioner  must  proceed  to  take 
testimony  in  relation  thereto,  and  the  testimony  of  each  witness 
must  be  reduced  to  writing  and  subscribed  by  each  witness.  16. 
Restoration  of  property  taken ;  retention  of  custody  of  property  by 
officer  or  other  disposition  —  If  it  appears  that  the  property  or 
VOL.  1  —  7  97 


§  110]  SEARCHES   AND    SEIZURES  [Chap.  Xlll 

paper  taken  is  not  the  same  as  that  described  in  the  warrant  or  that 
there  is  no  probable  cause  for  beheving  the  existence  of  the  grounds 
on  which  the  warrant  was  issued,  the  judge  or  commissioner  must 
cause  it  to  be  restored  to  the  person  from  whom  it  was  taken; 
but  if  it  appears  that  the  property  or  paper  taken  is  the  same  as  that 
described  in  the  warrant  and  that  there  is  probable  cause  for  believ- 
ing the  existence  of  the  grounds  on  which  the  warrant  was  issued, 
then  the  judge  or  commissioner  shall  order  the  same  retained  in  the 
custody  of  the  person  seizing  it  or  to  be  otherwise  disposed  of  ac- 
cording to  law.  17.  Filing  papers  with  clerk  of  court  having  juris- 
diction—  The  judge  or  commissioner  must  annex  the  affidavits, 
search  warrant,  return,  inventory  and  evidence,  and  if  he  has  not 
power  to  inquire  into  the  offense  in  respect  to  which  the  warrant 
was  issued  he  must  at  once  file  the  same,  together  with  a  copy 
of  the  record  of  his  proceedings,  with  the  clerk  of  the  court 
having  power  to  so  inquire.  18.  Obstructing  service  or  execu- 
tion—  Whoever  shall  knowingly  and  willfully  obstruct,  resist, 
or  oppose  any  such  officer  or  person  in  serving  or  attempting 
to  serve  or  execute  any  such  search  warrant,  or  shall  assault,  beat 
or  wound  any  such  officer  or  person,  knowing  him  to  be  an  officer 
or  person  so  authorized,  shall  be  fined  not  more  than  SIOOO  or 
imprisoned  not  more  than  two  years.  19.  Perjury  and  suborna- 
tion of  perjury  —  Sections  one  hundred  and  twenty-five  and  one 
hundred  and  twenty-six  of  the  Criminal  Code  of  the  United  States 
shall  apply  to  and  embrace  all  persons  making  oath  or  affirma- 
tion or  procuring  the  same  under  the  provisions  of  this  title,  and 
such  persons  shall  be  subject  to  all  the  pains  and  penalties  of 
said  sections.  20.  Maliciously  procuring  issue  —  A  person  who 
maliciously  and  without  probable  cause  procures  a  search  warrant 
to  be  issued  and  executed  shall  be  fined  not  more  than  $1000 
or  imprisoned  not  more  than  one  year.  21.  Officer  exceeding 
authority  —  An  officer  who  in  executing  a  search  warrant  will- 
fully exceeds  his  authority  or  exercises  it  with  unnecessary  se- 
verity, shall  be  fined  not  more  than  $1000  or  imprisoned  not 
more  than  one  year.  22.  Existing  laws  not  repealed  —  Nothing 
contained  in  this  title  shall  be  held  to  repeal  or  impair  any  ex- 
isting provisions  of  law  regulating  search  and  the  issue  of  search 
warrants." 
98 


Chap.  XIII]  REQUISITES   OF   COMPLAINT  [§  112 

§111.   Judicial  Construction.  '•  '     ■ 

Proceedings  by  search  warrants  ii'^tituted  for  the  purpose  of 
declaring  the  forfeiture  of  a  tuan's  property  by  reason  of  offcilses' 
committed  by  him,  though-  civil  in  form,  are  in  their  nature  crim- 
inal.^ A  search  warrant  'e^hnct  b&  issued  iri  a"  TirttSg'ith'a  prosecu- 
tion of  which  is  barred  by  the  stfttiit'':;  of  limitations'.'"  A  search 
warrant  cannot  be  issued  in  aid  of  a  private  right.^  In  cases  arising 
in  the  State  courts  the  claim  of  the  accused  for  immunity  from  prose- 
cution should  be  first  passed  upon  by  the  highest  court  of  the  State 
and,  if  any  Federal  right  is  denied  him,  he  may  then  take  the  case 
to  the  United  States  Supreme  Court.* 

§  112.  Requisites  of  Complaint  or  Information  for  Issuance  of 
Search  Warrant. 

The  principles  laid  down  in  Chapters  4  and  7  of  this  book  with  re- 
pect  to  warrants  generally  apply  equally  to  searches  and  seizures 
and  a  search  warrant  not  issued  in  conformity  with  same  will  be  held 
to  be  void.  An  affidavit  and  deposition  for  search  warrants  to  ex- 
amine "  books  of  account,  minute  books,  letter  press  copy  books, 
ledgers,  journals,  cash  books,  day  books,  memorandum  books, 
bank  books,  check  books,  and  receipt  books  ",  was  held  insufficient 
for  lack  of  particularity.^  A  search  warrant  issued  under  Act 
June  15,  1917  (Espionage  Act),  must  set  forth  facts  and  not  con- 
clusions from  which  the  court  can  determine  whether  a  proper 
case  for  the  issuance  of  the  warrant  has  been  established.^  An 
affidavit  for  a  search  warrant  need  not  set  forth  all  the  details  for 
passing  upon  the  materiality  of  every  document  which  the  warrant 
might  properly  produce.  General  allegation  showing  materiality 
to  the  issue  was  held  to  be  sufficiently  specific.^     Not  only  the  affi- 

§  111.   1  In  re   Boyd,    116   U.   S.  Walker-Gordon  Laboratory  Co.,  205 

616,  633,  29  L.  ed.  746,  6  S.  C.  524 ;  lU.  503. 

In  re   Food  Conservation  Act,   254  *  State  of  New  York  v.  Eno,  155 

Fed.  893,  904 ;  Stone  v.  United  States,  U.  S.  89,  99,  39  L.  ed.  80,  15  S.  C.  30. 
167  U.  S.  178,  42  L.  ed.  127,  17  S.  §  112.   i  Veeder  v.  United  States, 

C.   778;    United  States  v.   McKee,  252  Fed.  414  (C.  C.  A.  7th  Cir.),  246 

4  DiU.  128.  U.  S.  675,  62  L.  ed.  933,  38  S.  C.  428. 

2  Veeder  v.  United  States,  252  nn  re  Tri-State  Coal  &  Coke 
Fed.  414   (C.  C.  A.   7th  Cir.),  246  Co.,  253  Fed.  605. 

U.  S.  675,  62  L.  ed.  933,  38  S.  C.  428.  '  In    re    Rosenwasser    Bros.,    254 

3  Lipman  v.  People,  175  lU.  101 ;      Fed.  171. 

99 


§  112]  SEARCHES   AND    SEIZURES  [Chap.  Xlll 

davit  made,  for  thtJ  issuaiice  of  a  search  warrant,  but  also  the  com- 
plaint and  affidavit'  charging  -the  crime,  may  be  considered  in 
decermining  probable  cause  for  the  issuance  of  a  search  warrant. 
Where  these  papers  together  make 'out  a  showing  of  probable 
cause  Jis.toth&exiateRce  and  place  of  keeping  of  the  papers  sought 
and  as  to  the  commission' of  the  crime  charged,  the  issuance  of  a 
search  warrant  by  a  commissioner  is  justified/  Construing  the 
general  search  warrant  statute  Mr.  Justice  Baker,  speaking  for  the 
Court  of  Appeals  of  the  7th  Circuit,^  said :  "  One's  person  and 
property  must  be  entitled,  in  an  orderly  democracy,  to  protection 
against  both  mob  hysteria  and  the  oppression  of  agents  whom  the 
people  have  chosen  to  represent  them  in  the  administration  of  laws 
which  are  required  by  the  Constitution  to  operate  upon  all  persons 
alike.  One's  home  and  place  of  business  are  not  to  be  invaded 
forcibly  and  searched  by  the  curious  and  suspicious ;  not  even  by 
a  disinterested  officer  of  the  law,  unless  he  is  armed  with  a  search 
warrant."  A  person  who  is  incapable  of  testifying  under  the  law 
cannot  swear  to  a  complaint  upon  which  a  warrant  will  issue.^ 
The  court  further  said :  "No  search  warrant  shall  be  issued  unless 
the  judge  has  first  been  furnished  with  facts  under  oath — not  suspi- 
cions, beliefs  or  surmises  —  but  facts  which,  when  the  law  is  properly 
applied  to  them,  tend  to  establish  the  necessary  legal  conclusion,  or 
facts  which,  when  the  law  is  properly  applied  to  them,  tend  to  estab- 
lish probable  cause  for  believing  that  the  legal  conclusion  is  right. 
The  inviolability  of  the  accused's  home  is  to  be  determined  by  the 
facts,  not  by  rumor,  suspicion,  or  guesswork.  If  the  facts  afford  the 
legal  basis  for  the  search  warrant,  the  accused  must  take  the  conse- 
quences. But  equally  there  must  be  consequences  for  the  accuser 
to  face.  If  the  sworn  accusation  is  based  on  fiction,  the  accuser 
must  take  the  chance  of  punishment  for  perjury.  Hence  the  neces- 
sity of  a  sworn  statement  of  facts,  because  one  cannot  be  convicted  of 
perjury  for  having  a  belief,  though  the  belief  be  utterly  unfounded 
in  fact  and  law.  The  finding  of  the  legal  conclusion  or  of  probable 
cause  from  the  exhibited  facts  is  a  judicial  function,  and  it  cannot  be 

*  In    re    Rosenwasser    Bros.,    254  •  Graff    v.    State,    37    Ind.    353 ; 

Fed.  171.  Woods  v.  State,  134  Ind.  35. 

^Vvv.ddT    V.    United    States,    252 
Fed.  418. 

100 


Chap.  XIII]  SUBPCENAS   DUCES   TECUM  [§  113  a 

delegated  by  the  judge  to  the  accuser.  No  search  warrant  should 
be  broader  than  the  justifying  basis  of  facts.  For  example,  if  a 
murder  has  been  committed  by  means  of  a  shot  from  a  gun  and  by 
no  other  means,  the  search  warrant  should  not  direct  the  officer  to 
enter  the  accused's  home  and  seize  the  family  register  of  births  and 
deaths.  And  as  the  serving  officer  has  no  discretion  in  executing  the 
search  warrant  in  its  entirety,  the  householder  is  entitled  to  have 
the  search  warrant  quashed.  .  .  ."  The  denial  of  a  search  warrant 
on  the  ground  of  insufficiency  of  the  affidavit  or  deposition  is  not 
a  bar  to  fm'ther  proceedings.^ 

§  113.   Right  to  Review  Search  Warrant  Orders. 
An  order  denying  a  motion  to  quash  a  search  warrant  and  for 
the  return'  of  the  papers  seized  is  reviewable  by  a  writ  of  error .^ 

§  113  a.   Subpoenas  Duces  Tecum  and  Orders  to  Produce. 

An  order  for  the  production  of  books  and  papers  may  constitute 
an  unreasonable  search  and  seizure  within  the  meaning  of  the 
Fourth  Amendment.  The  Constitution  may  be  violated  through  a 
compulsory  production  of  private  papers,  whether  under  a  search 
warrant  or  a  siihpcFtia  duces  tecum.  A  subpoena  duces  tecum  too 
general  in  terms  cannot  be  upheld  as  reasonable.  A  general  sub- 
poena duces  tecum  is  as  indefensible  as  a  search  warrant.  A  show- 
ing must  be  first  made  of  the  materiality  of  the  evidence  sought  to 
be  elicited  and  the  necessity  for  the  production  of  same.^ 

'  Veeder    v.    United    States,    252  §  113  a.   ^  Hale     v.     Henkel,   201 

Fed.  414,  246  U.  S.  675,  62  L.  ed.  U.  S.  43,  50  L.  ed.  652,  26  S.  C.  370 ; 

933,  38  S.  C.  428.  Nelson  v.  United  States,  201  U.  S. 

§  113.   1  Veeder  v.  United  States,  92,  50  L.  ed.  673,  26  S.  C.  358. 
252  Fed.  414. 


101 


CHAPTER   XIV 

PRIVILEGES  AND  IMMUNITIES   AGAINST  SELF- 
INCRIMINATION 

§  114.  Constitutional  Guarantees. 

§  114  a.  Tending  to  Disgrace  Witness. 

§  115.  Scope  of  Guarantee. 

§  115  a.  Matters  Barred  by  Limitations  and  Pardon. 

§  116.  Compelling  Production  of  Papers. 

§  117.  The  Old  Statute. 

§  118.  In  Proceedings  before  the  Grand  Jury. 

§  1 19.  Immunity  —  When  Must  Be  Claimed. 

§  120.  Who  May  Claim  Privilege  —  Corporations. 

§  121.  Grounds  of  Privilege  —  Unconstitutionality  of  Statute. 

§  122.  Basis  for  Claiming  Privilege  —  Danger. 

§  123.  In  Bankruptcy  Matters. 

§  124.  Not  Privileged  When  Offense  Barred  by  Limitations. 

§  125.  In  Case  of  Pardon. 

§  126.  May  Be  Dispensed  with  by  Statute  —  When. 

§  127.  Prosecution  for  Perjury. 

§  128.  Immunity  under  Bankruptcy  Act. 

§  129.  Waiver  of  Privilege. 

§  130.  Power  of  United  States  Attorney  to  Promise  Immunity. 

§  114.   Constitutional  Guarantees. 

The  Fifth  Amendment  to  the  Constitution  of  the  United  States 
among  other  things  provides :  "  Nor  shall  (any  person)  be  com- 
pelled in  any  Criminal  Case  to  be  a  witness  against  himself." 
The  maxim  nemo  tenetur  seipsum  accusare  had  its  origin  in  a 
protest  against  the  inquisitorial  and  manifestly  unjust  methods  of 
interrogating  accused  persons,  which  has  long  obtained  in  the 
continental  system,  and,  until  the  expulsion  of  the  Stuarts  from 
the  British  throne  in  1688,  and  the  erection  of  additional  barriers 
for  the  protection  of  the  people  against  the  exercise  of  arbitrary 
power,  was  not  uncommon  even  in  England.  While  the  admissions 
102 


Chap.  XIV]  constitutional  guarantees  [§  114 

or  confessions  of  the  prisoner,  when  voluntarily  and  freely  made, 
have  always  ranked  high  in  the  scale  of  incriminating  evidence, 
if  an  accused  person  be  asked  to  explain  his  apparent  connection 
with  a  crime  under  investigation,  the  ease  with  which  the  questions 
put  to  him  may  assume  an  inquisitorial  character,  the  temptation 
to  press  the  witness  unduly,  to  browbeat  him  if  he  be  timid  or 
reluctant,  to  push  him  into  a  corner,  and  to  entrap  him  into  fatal 
contradictions,  which  is  so  painfully  evident  in  many  of  the  earlier 
state  trials,  notably  in  those  of  Sir  Nicholas  Throckmorton,  and 
Udal,  the  Puritan  minister,  made  the  system  so  odious  as  to  give 
rise  to  a  demand  for  its  total  abolition.  The  change  in  the  Eng- 
lish criminal  procedure  in  that  particular  seems  to  be  founded 
upon  no  statute  and  no  judicial  opinion,  but  upon  a  general  and 
silent  acquiescence  of  the  courts  in  a  popular  demand.  But, 
however  adopted,  it  has  become  firmly  embedded  in  English,  as 
well  as  in  American  jurisprudence.  So  deeply  did  the  iniquities 
of  the  ancient  system  impress  themselves  upon  the  minds  of  the 
American  colonists  that  the  States,  with  one  accord,  made  a  denial 
of  the  right  to  question  an  accused  person  a  part  of  their  funda- 
mental law,  so  that  a  maxim,  which  in  England  was  a  mere  rule 
of  evidence,  became  clothed  in  this  country  with  the  impregnability 
of  a  constitutional  enactment.^  The  words  "  criminal  case " 
have  been  construed  as  including  such  crimes  the  punishment  for 
which  is  to  be  visited  upon  the  person  of  the  offender  in  the 
ordinary  course  of  a  criminal  prosecution  in  contradistinction  to  a 
proceeding  in  rem?  Suits  for  penalties  and  forfeitures  which  are 
quasi-CTim'mal  in  nature,  are  within  the  meaning  of  the  above 
constitutional  provision.^  This  constitutional  safeguard,  de- 
liberately framed  for  the  purpose  of  protecting  the  rights  of  the 
individual    citizen,    is    of  equal   if  not  more  concern  than  the 

§  114.   1  Brown    v.    Walker,     161  theory  of  our  government  is  accusa- 

U.  S.  591,  597,  40  L.  ed.  819,  16  S.  tory   and  not  inquisitorial.     United 

C.    644.     The    Star    Chamber    had  States  v.  James,  60  Fed.  257  (D.  C). 

an     inquisitorial     procedure.     Upon  ^  United    States    v.    Three    Tons 

suggestion  or  suspicion  citizens  were  of  Coal,   6  Biss.    (U.   S.)   379,   Fed. 

subpoenaed  and  subjected  to  examina-  Cas.  No.  16515. 

tion  under  the  ex  officio  oath.     See  'Boyd     v.     United     States,     116 

preamble  of  Act  for  the  AboUtion  of  U.  S.  616,  634,  29  L.  ed.  746,  6  S.  C. 

that     Court.     (July     5,     1641;      16  524;    Lees  f.  United  States,  150  U. 

Charles  1,  c.  10,  5  S.  R.  110.)     The  S.  476,  37  L.  ed.  1150,  14  S.  C.  163. 

103 


§  113]  PRIVILEGES   AND    IMMUNITIES  [Chap.  XIV 

conviction  of  any  one  accused  of  the  commission  of  a  criminal 
act,  no  matter  how  guilty  in  fact  he  may  be.^  As  Pollock,  J.^ 
so  ably  stated  :  "  One  wrong  plus  another  does  not  make  a  right." 
A  witness  cannot  be  required  to  waive  his  constitutional  privilege 
upon  an  assurance  by  the  court  that  no  information  given  by  him 
in  his  answers  to  the  questions  would  or  could  be  used  against 
him  in  any  prosecution  in  any  court  of  the  United  States.  He  has 
a  right  to  stand  upon  his  constitutional  privilege  notwithstanding 
such  assurance.^ 

§  114  a.  Tending  to  Disgrace  Witness. 

If  the  answer  of  the  witness  may  have  a  tendency  to  disgrace 
him  or  bring  him  into  disrepute,  and  the  proposed  evidence  be 
material  to  the  issue  on  trial,  the  great  weight  of  authority  is  that 
he  may  be  compelled  to  answer,  although,  if  the  answer  can  have 
no  effect  upon  the  case,  except  so  far  as  to  impair  the  credibility 
of  the  witness,  he  may  fall  back  upon  his  privilege.^  But  even  in 
the  latter  case,  if  the  answer  of  the  witness  will  not  directly  show 
his  infamy,  but  only  tend  to  disgrace  him,  he  is  bound  to  answer.^ 
The  cases  of  Respublica  v.  Gibbs,^  and  Lessee  of  Galbreath  v. 
Eichelberger,^  to  the  contrary,  are  opposed  to  the  weight  of  author- 
ity. The  extent  to  which  the  witness  is  compelled  to  answer  such 
questions  as  do  not  fix  upon  him  a  criminal  culpability  is  within 
the  control  of  the  legislature.^ 

§  115.   Scope  of  Guarantee. 

The  constitutional  provision  against  self-incrimination  should 
receive  a  broad  construction  to  secure  immunity  to  the  citizen 
from  every  kind  of  self-accusation.     A  literal  construction  would 

*  United  States  v.  Mounday,  208  109;    Weldon  v.  Burch,   12  Illinois, 

Fed.  186.  374 ;     Cundell    v.    Pratt,    Moody    & 

»  United  States  v.  Mounday,  supra.  Malkin,    108 ;     Ex    parte    Rowe,    7 

•Foot    V.     Buchanan,     113    Fed.  California,  184. 
156,  161  (5th  Cir.).  =  Brown  v.  Walker,  161  U.  S.  591, 

§  114  a.   1  Brown  v.  Walker,    161  597,  40  L.  ed.  819,  16  S.  C.  644;    1 

U.  S.  591,  597,  40  L.  ed.  819,   16  Greenl.  on  Ev.  §  456. 
S.  C.  644;   1  Greenl.  on  Ev.  §§  454,  '  3  Yeates,  429. 

455;     People   v.    Mather,    4   Wend.  *  3  Yeatcs,  515. 

229 ;  Lehman  v.  People,  1  N.  Y.  379 ;  ^  State  v.  Nowell,  58  N.  H.  314, 

Commonwealth  v.  Roberts,  Brightly,  316.     Brown  v.  Walker,  supra. 
104 


Chap.  XIV]  SCOPE  OF  GUARANTEE  [§  115 

deprive  it  of  its  efficiency.^  And  this  protection  is  extended 
against  the  use  of  the  information  received  in  other  proceedings.^ 
The  prohibition  of  compeUing  a  man  to  be  witness  against  himself 
in  a  criminal  court  is  the  prohibition  of  the  use  of  physical  or 
moral  compulsion  to  extort  communications  from  him ;  it  is  not 
extended  to  an  exclusion  of  his  body  as  evidence  when  it  may  be 
material,  for  such  an  objection,  in  principle,  would  forbid  a  jury 
to  look  at  a  prisoner  and  compare  his  features  with  a  photograph 
offered  in  proof .^  The  production  of  a  documentary  confession 
by  a  third  person,  into  whose  hands  it  has  come  alio  intuitu,  does 
not  compel  the  witness  to  be  a  witness  against  himself  in  violation 
of  the  Amendment.'*  Calling  on  a  defendant  in  the  presence  of 
the  jury,  by  direction  of  the  court,  to  produce  a  self-incriminating 
document,  is  an  infraction  of  the  clause.^  A  defendant  may  not 
object  to  evidence  tending  to  incriminate  him  and  which  was 
obtained  during  a  search  of  the  premises  of  some  one  else  and  made 
under  a  lawful  search  warrant.^  Testimony  given  by  a  defendant 
before  a  commissioner  at  a  preliminary  hearing  may  be  admitted 
in  evidence  against  him  at  the  trial  unless  it  affirmatively  appears 
from  the  record  that  it  was  not  voluntarily  given. ^  This  provision, 
however,  is  not  binding  upon  the  States.^  In  a  recent  case  ^  the 
Supreme  Court  of  the  United  States  considered  this  question  which 
arose  in  the  State  court  of  Pennsylvania,  whether  the  schedules 
filed  by  a  bankrupt,  and  the  books  and  papers  which  he  turned 
over  to  the  trustee  under  the  peremptory  requirements  of  the 
bankruptcy  law,  could  be  used  in  a  criminal  trial  of  the  bankrupt  in 
a  State  court.     It  was  decided  that  the  Fifth  Amendment  to  the 

§  115.   1  Wilson  V.  United  States,  '  Holt  v.   United   States,    218   U. 

221  U.  S.  361,  55  L.  ed.  771,  31  S.  C.  S.  245,  54  L.  ed.  1021,  31  S.  C.  2. 

538;     In    re    Nachman,     114    Fed.  *  Johnson   v.    United   States,    228 

995;     Boyd    v.    United    States,    116  U.  S.  457,  57  L.  ed.  919,  33  S.  C. 

U.  S.  616,  29  L.  ed.  746,  6  S.  C.  524;  572. 

Counselman  v.  Hitchcock,  142  U.  S.  ^  Mclvnight  v.  United  States,  115 

547,  at  562,  35  L.  ed.  1110,  12  S.  C.  Fed.  972,  54  C.  C.  A.  358  (6th  Cir.). 

195;    Brown  v.   Walker,    161   U.   S.  « Schenk    v.    United    States,    249 

591,  40  L.  ed.  819,   16  S.  C.  644;  U.  S.  47. 

McKnight  v.  United  States,  115  Fed.  ^  Powers  v.  United  States,  223  U. 

972,  54  C.  C.  A.  358  (6th  Cir.).  S.  303,  56  L.  ed.  448,  32  S.  C.  281. 

2  Counselman    v.    Hitchcock,    142  '  Ensign     v.     Pennsylvania,     227 

U.  S.  562,  35  L.  ed.  1110,  12  S.  C.  U.  S.  592,  57  L.  ed.  658,  33  S.  C.  321. 

195.                              '  "Ensign  v.   Pennsylvania,   supra. 

105 


§  114]  PRIVILEGES   AND    IMMUNITIES  [Chap.  XIV 

Constitution  of  the  United  States  is  not  obligatory  upon  the 
governments  of  the  several  States,  or  their  judicial  establishments, 
and  regulates  the  procedure  of  the  Federal  Courts  only. 

§  115  a.   Matters  Barred  by  Limitations  and  Pardon. 

If  a  prosecution  for  a  crime,  concerning  which  the  witness  is 
interrogated,  is  barred  by  the  statute  of  limitations,  he  is  com- 
pellable to  answer.^  If  the  witness  has  already  received  a  pardon, 
he  cannot  longer  set  up  his  privilege,  since  he  stands  with  respect 
to  such  offense  as  if  it  had  never  been  committed .^ 

§  116.   Compelling  Production  of  Papers. 

Commenting  on  the  intimate  relation  between  the  Fourth  and 
Fifth  Amendments,  the  Supreme  Court  in  Boyd  v.  United  States,^ 
said :  "  They  throw  great  light  on  each  other.  For  the  '  un- 
reasonable searches  and  seizures '  condemned  in  the  Fourth 
Amendment  are  almost  always  made  for  the  purpose  of  compelling 
a  man  to  give  evidence  against  himself,  which  in  criminal  cases  is 
condemned  in  the  Fifth  Amendment ;  and  compelling  a  man  in  a 
criminal  case  to  be  a  witness  against  himself  which  is  condemned 
in  the  Fifth  Amendment,  throws  light  on  the  question  as  to  what 
is  a  '  reasonable  search  and  seizure  '  within  the  meaning  of  the 
Fourth  Amendment.  And  we  have  been  unable  to  perceive  that 
the  seizure  of  a  man's  private  books  and  papers  to  be  used  in 
evidence  against  him  is  substantially  different  from  compelling 
him  to  be  a  witness  against  himself."  ^      Accordingly,  a  statute 

§115  a.  1  Brown   v.  Walker,  161  597,  40  L.  ed.  819,  16  S.   C.  644; 

U.  S.  591,  597,  40  L.  ed.  819,  16  S.  C.  Roberts  v.  Allatt,  Moody  &  Malkin, 

644;    Parkhurst  v.  Lowten,  1  Meri-  192,    overruling    Rex   v.    Reading,    7 

vale,  391,400;  Calhoun  w.  Thompson,  How.  St.  Tr.  259,  296,  and  Rex  v. 

66  Alabama,  166;    M^hanke  v.  Cle-  Earl  of  Shaftsbury,  8  How.  St.  Tr. 

land,    76    Iowa,    401;     Weldon    v.  817;  Queen  v.  Boyes,  1  B.  &  S.  311, 

Burch,     12    Illinois,     374;     United  321. 

States  V.  Smith,  4  Day,  121 ;    Close  §  116.   i  116  U.  S.  616,  29  L.  ed. 

V.   Olney,   1   Denio,   319;    People  v.  746,  6  S.  C.  524. 

Mather,    4    Wend.    229,    252,    255;  *  In    Interstate    Commerce    Com- 

Wilhams  v.  Farrington,  11  Cox  Ch.  mission  v.  Baird,   194  U.  S.  25,  48 

R.  202 ;    Davis  v.  Reid,  5  Sim.  443 ;  L.  ed.  860,  24  S.  C.  563,  the  Boyd 

Floyd  V.  State,  7  Tex.  215 ;   Maloncy  case,  supra,  was  considered  in  con- 

t;.    Dows,    2    Hilt.    247;     Wolfe    v.  nection  with  the  Fourth  and  Fifth 

Goulard,  15  Abb.  Pr.  336.  Amendments  and  its  reasoning  was 

» Brown  v.  Walker,  161  U.  S.  591,  approved  again. 
106 


Chap.  XIV]  THE   OLD    STATUTE  [§  117 

providing  that  a  defendant  in  a  criminal  case  should  be  compelled 
to  produce  his  private  books  and  papers  in  court  or  else,  that  the 
information  filefl  by  the  district  attorney  be  held  as  confessed, 
was  held  to  be  unconstitutional  and  repugnant  to  the  Fourth  and 
Fifth  Amendments  to  the  Constitution  of  the  United  States.  It 
was  held  also  that  the  constitutional  provision  against  unreason- 
able searches  and  seizures  may  be  violated  even  though  no  actual 
entry  upon  the  premises  is  made.^  If  no  authority  exists  to  compel 
a  man  to  produce  his  books  and  papers,  this  doctrine  cannot  be 
obviated  by  an  order  requiring  his  attorney  to  produce  same.^ 

§  117.  The  Old  Statute. 

Section  860  of  the  Revised  Statutes  of  the  United  States  pro- 
vided :  "  That  no  answer  or  other  pleading  of  any  party  and  no 
discovery  of  evidence  obtained  by  means  of  any  judicial  proceeding 
from  any  party  or  witness  .  .  .  shall  be  given  in  evidence  or  in 
any  manner  used  against  such  party  or  witness  ...  in  any 
court  of  the  United  States  or  in  any  proceeding  by  or  before  any 
officers  of  the  United  States  in  respect  to  any  crime."  The  Su- 
preme Court  of  the  United  States  held  that  it  was  not  as  broad  as 
the  Constitution.^  It  was  construed  as  meaning  that  no  evidence 
obtained  from  a  witness  by  means  of  a  judicial  proceeding  shall  be 
given  in  evidence,  or  in  any  manner  used  against  him  or  his  prop- 
erty or  estate,  in  any  court  of  the  United  States,  in  any  criminal 
proceeding,  or  for  the  enforcement  of  any  penalty  or  forfeiture. 
But  it  has  only  this  effect.  It  could  not,  and  would  not,  prevent 
the  use  of  his  testimony  to  search  out  other  testimony  to  be  used 
in  evidence  against  him  or  his  property,  in  a  criminal  proceeding 
in  such  court.  It  could  not  prevent  the  obtaining  and  the  use  of 
witnesses  and  evidence  which  should  be  attributable  directly 
to  the  testimony  he  might  give  under  compulsion,  and  on  which 
he  might  be  convicted,  when  otherwise,  and  if  he  had  refused  to 
answer,  he  could  not  possibly  have  been  convicted.^ 

3  Boyd  V.  United  States,    116  U.  Warner  Dry  Goods  Co.,  210  Fed.  97, 

S.  616,  29  L.  ed.  746,  6  S.  C.  524.  126  C.  C.  A.  632  (3d  Cir.).     This  sec- 

*  Grant  v.  United  States,  227  U.  tion  was  repealed  on  May  7,  1910,  but 

S.  74,  57  L.  ed.  423,  33  S.  C.  190.  was  held  applicable  to  pending  causes. 

§  117.   1  Counselman     v.      Hitch-  Cameron  v.  United  States,  231  U.  S. 

cock,  142  U.  S.  562,  35  L.  ed.  1110,  710,  .58  L.  ed.  448,  34  S.  C.  244. 
12    S.    C.    195 ;     PodoHn   v.    Lesher  ^  CounseLman    v.    Hitchcock,    142 

107 


§  118]  PRIVILEGES   AND    IMMUNITIES  [Chap.  XIV 

§  118.   In  Proceedings  before  the  Grand  Jury. 

The  privilege  may  be  exercised  in  proceedings  before  a  grand 
jury.^  In  the  leading  case  of  Counselman  v.  Hitchcock,^  Counsel- 
man  had  been  subpoenaed  before  a  Federal  grand  jury  to  testify 
in  an  investigation  requested  by  the  Interstate  Commerce  Com- 
mission, and  then  being  conducted  by  the  district  attorney  for 
that  district,  as  to  whether  certain  railroads  engaged  in  inter- 
state commerce  had  violated  the  provisions  of  the  act  in  that 
behalf,  by  charging  to  certain  shippers  less  than  their  published 
tariff  rates  for  the  transportation  of  grain,  and  in  this  manner 
giving  tariff  rates  for  the  transportation  of  grain,  and  so  giving 
preference  to  such  shippers.  Counselman  was  a  large  shipper  of 
grain,  with  offices  in  Chicago,  and  in  his  examination  he  declined 
to  answer  such  questions  as  the  following  on  the  ground  that  to 
answer  might  tend  to  incriminate  him :  "  Have  you  during  the 
past  year,  Mr.  Counselman,  obtained  a  rate  for  the  transportation 
of  your  grain  on  any  of  the  railroads  coming  to  Chicago  from  points 
outside  of  this  state,  less  than  the  tariff  or  open  rate?  "  Other 
and  kindred  questions  to  the  same  purpose  were  submitted  to 
him,  all  of  which  he  declined  to  answer  upon  the  same  ground. 
Having  been  committed  for  contempt  by  the  district  court  for 
refusal  to  answer  these  questions,  a  writ  of  habeas  corpus  was  sued 
out  in  his  behalf,  which  finally  reached  the  Supreme  Court.  In 
discussing  the  scope  of  the  constitutional  provision  invoked  by 
Counselman,  the  Supreme  Court  says :  "  It  is  broadly  contended 
on  the  part  of  the  appellee  that  a  witness  is  not  entitled  to  plead 
the  privilege  of  silence,  except  in  a  criminal  case  against  himself.  .  .  . 
Its  provision  is  '  that  no  person  shall  be  compelled  in  any  crim- 
inal case  to  be  a  witness  against  himself  '.  This  provision  must 
have  a  broad  construction  in  favor  of  the  right  which   it  was 

U.  S.  547,  564,  35  L.  cd.  1110,   12  cock,  142  U.  S.  547,  35  L.  ed.  1110, 

S.  C.  195 ;    In  re  O'Shea,  166  Fed.  12  S.  C.  195 ;    United  States  v.  Wet- 

180 ;    La  Bourgogne,  104  Fed.  823 ;  more,  218  Fed.  227 ;    People  v.  Argo, 

In  re  Phillips,  10  Int.  Rev.  Rcc.  107,  237   111.  173;     Hale    v.    Ilenkel,  201 

17  Fed.  Cas.    No.    11,097;    Podolin  U.  S.  43,  50  L.  cd.  652,  26  S.  C.  370; 

i;.    Lesher   Warner   Dry   Goods   Co.,  Mason  v.   United  States,  244  U.  S. 

210  Fed.  97.   126  C.  C.  A.  632  (3d  362,  61  L.  cd.  1198,  37  S.  C.  621. 
Cir.).  *  142  U.  S.  547,  35  L.  ed.  1110,  12 

§  118.   '  Counselman     v.     Hitch-  S.  C.  195. 
108 


Chap.  XIV]      WHO   MAY    CLAIM    PRIVILEGE  —  CORPORATIONS      [§  120 

intended  to  secure.  The  matter  under  investigation  by  the 
grand  jury  in  this  case  was  a  criminal  matter  to  inquire 
whether  there  had  been  a  criminal  violation  of  the  Interstate 
Commerce  Act.  If  Counselman  had  been  guilty  of  the  mat- 
ters inquired  of  in  the  questions  which  he  refused  to  answer  he 
himself  was  liable  to  criminal  prosecution  under  the  Act.  The 
case  before  the  grand  jury  was,  therefore,  a  criminal  case."  The 
reason  given  by  Counselman  for  his  refusal  to  answer  was 
that,  if  he  answered  the  questions  truly  and  fully  (as  he  was  bound 
to  do  if  he  should  answer  them  at  all)  the  answers  might  show  that 
he  had  committed  a  crime  against  the  Interstate  Commerce  Act, 
for  which  he  might  be  prosecuted.  His  answers,  therefore,  would 
be  testimony  against  himself,  and  he  would  be  compelled  to  give 
them  in  a  criminal  case.  The  privilege  is  limited  to  criminal 
matters,  but  it  is  as  broad  as  the  mischief  against  which  it  seeks 
to  guard.  Continuing  the  Court  said :  "  It  is  argued  for  the  ap- 
pellee that  the  investigation  before  the  grand  jury  was  not  a  crimi- 
nal case,  but  was  solely  for  the  purpose  of  finding  out  whether  a 
crime  had  been  committed.  ...  In  support  of  this  view,  reference 
is  made  to  Article  Six  of  the  Amendments  to  the  Constitution  of  the 
United  States,  which  provides  that  in  all  criminal  prosecutions  the 
accused  shall  enjoy  the  right  to  a  speedy  and  public  trial  by  an  im- 
partial jury.  But  this  provision  distinctly  means  a  criminal  prose- 
cution against  a  person  who  is  accused  and  who  is  to  be  tried  by  a 
petit  jury.  A  criminal  prosecution  under  Article  Six  of  the  amend- 
ments is  much  narrower  than  a  'criminal  case  '  under  Article  Five 
of  the  amendments.  It  is  entirely  consistent  with  the  language  of 
Article  Five,  that  the  privilege  of  not  being  a  witness  against  him- 
self is  to  be  exercised  in  a  proceeding  before  a  grand  jury." 

§  119.   Immunity  —  When  Must  Be  Claimed. 
The  time  to  claim  immunity  from  self-incrimination  is  when  the 
testimony  is  asked  for ;   if  made  later  the  privilege  is  waived.^ 

§  120.  Who  May  Claim  Privilege  —  Corporations. 
The  provision  is  not  confined,  or  even  directed,  to  defendants. 
It  is  for  the  protection  of  witnesses,  without  respect  to  their 

§  119.   1  Burrell  r.  Montana,     194      787;    United  States  y.  Kimball,  117 
U.  S.  572,  48  L.  ed.  1122,  24  S.  C.      Fed.  156  (2d  Cir.). 

109 


§  120]  PRIVILEGES   AND    IMMUNITIES  [Chap.  XIV 

connection  with  the  proceedings.  This  amendment  was  adopted 
at  a  time  when  defendants  could  not  testify,  either  for  or  against 
themselves,  and  therefore  it  could  not  be  construed  as  referring  to 
defendants  as  such.  It,  of  course,  includes  defendants  if  they 
belong  to  the  class  of  competent  witnesses.  When  the  disability 
with  reference  to  defendants  was  removed  by  statute,  they  then 
came  within  the  constitutional  provision,  not  because  they  were 
defendants,  but  because  they  were  witnesses.^  The  privilege 
against  self-incrimination  does  not  extend  to  corporations,  nor 
may  it  be  asserted  by  their  officers  and  agents  in  their  behalf.^ 
And  the  privileges  and  immunities  possessed  by  the  stockholders 
are  not  ipso  facto  those  of  the  corporation.^  Aliens  in  the  United 
States  are  entitled  to  the  protection  of  the  clause."*  The  right  is 
purely  a  personal  privilege  of  the  witness.  He  cannot  plead  the 
fact  that  some  third  person  might  be  incriminated  by  his  testimony, 
even  though  he  is  the  third  person's  agent ;  and  this  rule  applies 
to  officers  or  agents  of  corporations.^  It  cannot  be  invoked  by 
the  witness'  counsel.  The  witness  has  a  right  to  advise  with  his 
counsel  in  the  hearing  of  the  court  though  not  privately.^  But 
the  witness  must  give  his  own  answer  without  aid  in  writing  or 
otherwise.^  The  privilege,  being  personal,  may  be  waived.^ 
The  privilege  of  refusing  to  testify  must  be  claimed.     Unless 

§120.   1  United    States    v.    Wet-  306;    Paul  v.  Virginia,  8  Wall.   (U. 

more,  218  Fed.  227,  234;    Counsel-  S.)    168,    19   L.   ed.    357;     Hale   v. 

man  v.  Hitchcock,  142  U.  S.  547,  35  Henkel,  201  U.  S.  43,  50  L.  ed.  652, 

L.  ed.  1110,  12  S.  C.  195;    United  26  S.  C.  370;    Railroad  Tax  Cases, 

States    V.    Kimball,    117    Fed.    156  8  Sawy.  238,  13  Fed.  722,  746  (9th 

(2d  Cir.).  Cir.). 

»Hale  V.   Henkel,   201   U.   S.   43,  « United   States   v.   Wong   Quong 

50  L.  ed.  652,  26  S.  C.  370 ;    Com-  Wong,  94  Fed.  832. 
monwealth  v.  Southern  Express  Co.,  "  Hale  v.   Henlcel,   201   U.   S.  43, 

160  Ky.  1,  169  S.  W.  517;   Baltimore  50  L.  ed.  652,  26  S.  C.  370;   Wilson 

etc.,  R.  Co.  V.  Interstate  Commerce  v.  United  States,  221  U.  S.  361,  55 

Commission,   221   U.  S.  612,   55  L.  L.  ed.  771,  31  S.  C.  538;  In  re  Tracy, 

ed.  878,   31    S.   C.    621 ;    American  177  Fed.  532. 

Lithographic    Co.    v.    Werckmeister,  *  In  re  Isjiickerbocker  Steamboat 

221  U.  S.  603,  55  L.  ed.  873,  31  S.  Co.,    136   Fed.    956   at   958;    In   re 

C.     676;      Orvig     Dampskibselskap  O'Shea,  166  Fed.  180. 
Acticsclskabet  v.  New  York  &  Ber-  ''  In     re     Knickerbocker     Steam- 

mudez  Co.  et  nl,  229  Fed.  293.  boat  Co.,  136  Fed.  958. 

»  Bank   of   Augusta   v.   Earle,    13  » In  re  Tracy,  177  Fed.  532. 

Pet.  (U.  S.)  519,  586,  10  L.  ed.  274, 
110 


Chap.  XIV]      basis    FOR   CLAIMING    PRIVILEGE  —  DANGER  [§   122 

the  witness  exhibit  his  unwilUngness  in  some  manner,  it  cannot 
be  presumed  to  exist.^ 

§  121.   Grounds  of  Privilege  —  Unconstitutionality  of  Statute. 

Persons  other  than  a  defendant,  summoned  before  a  grand 
jury  or  a  congressional  committee,  are  protected  against  self- 
incrimination.  They  can  refuse  to  testify  on  that  ground,  and 
on  that  ground  only.  They  liave  no  right  to  base  their  refusal 
on  the  ground  that  the  statute  under  which  the  proceedings  are 
held  is  unconstitutional.^ 

§  122,   Basis  for  Claiming  Privilege  —  Danger. 

The  constitutional  protection  against  self-incrimination  "  is 
confined  to  real  danger,  and  does  not  extend  to  remote  possibilities 
out  of  the  ordinary  course  of  law."  ^  The  authorities  are  numer- 
ous, and  very  nearly  uniform,  to  the  effect  that,  if  the  proposed 
testimony  is  material  to  the  issue  on  trial,  the  fact  that  the  testi- 
mony may  tend  to  degrade  the  witness  in  public  estimation  does 
not  exempt  liim  from  the  duty  of  disclosure.  The  design  of  the 
constitutional  privilege  is  not  to  aid  the  witness  in  vindicating  his 
character,  but  to  protect  him  against  being  compelled  to  furnish 
evidence  to  convict  him  of  a  criminal  charge.  If  he  secure  legal 
immunity  from  prosecution,  the  possible  impairment  of  his  good 
name  is  a  penalt}'  which  it  is  reasonable  he  should  be  compelled 
to  pay  for  the  common  good.  If  it  be  once  conceded  that  the 
fact  that  his  testimony  may  lead  to  bring  the  witness  into  dis- 
repute, though  not  to  incriminate  him  and  which  does  entitle 
him  to  the  privilege  of  silence,  it  necessarily  follows  that  if  it  tends 
also  to  incriminate  him,  but  at  the  same  time  operates  as  a  pardon 
for  the  offense,  the  fact  that  the  disgrace  remains  does  not  entitle 
him  to  immunity  in  this  case  any  more  than  in  the  other.^    Hence, 

'United   States  t-.   I^mbaU,    117  33  S.  C.  226;    Ex  Parte  Irvine,  74 

Fed.  156,  160  (2d  Cir.).  Fed.  954,  960  (C.  C.  A.  6th  Cir.) ; 

§  121.   1  Nelson  v.  United  States,  Brown  v.  Walker,  161  U.  S.  591,  599, 

201  U.  S.  92,  50  L.  ed.  673,  26  S.  C.  40  L.   ed.   819,    16  S.   C.    644,    and 

358 ;    Ex  Parte  Blair,   253  Fed.  800.  quoting  from  Reg.  v.  Boyes,  1  Best 

§  122.   »  Mason  v.  United  States,  &  S.  311,  329. 
244  U.  S.  362,  61  L.  ed.  1198,  37  S.  » Brown  v.  Walker,  161  U.  S.  591, 

C.  621,  citing  Heike  v^  United  States,  605,  40  L.  ed.  819,  16  S.  C.  644. 
227  U.  S.  131,  144,^57  L.  ed.  450, 

111 


§  122]  PRIVILEGES   AND    IMMUNITIES  [Chap.  XIV 

where  it  clearly  appears  to  the  court  that  a  witness  contumaciously 
or  mistakenly  refuses  to  furnish  evidence  which  cannot  possibly 
injure  him,  he  will  not  be  permitted  to  shield  himself  behind  the 
privilege/  especially  if  the  witness  does  not  swear  that  he  be- 
lieves it  would."*  It  is  only  where  the  criminating  effect  of  the 
question  is  doubtful  that  the  motive  of  the  witness  in  pleading 
the  privilege  may  be  considered.  In  such  a  case,  his  bad  faith 
would  have  a  tendency  to  show  that  his  answer  would  not  subject 
him  to  the  danger  of  a  criminal  prosecution  or  help  to  prove  him 
guilty  of  crime. ^  But  if  the  fact  appears  that  the  witness  is  in 
danger,  great  latitude  should  be  allowed  to  him  in  judging  for 
himself  of  the  effect  of  any  particular  question.^  The  mere 
statement  of  a  witness  that  his  answer  to  a  question  would  criminate 
or  tend  to  criminate  him  is  not  conclusive.  It  is  for  the  judge 
to  decide  whether  an  answer  to  the  question  put  may  reasonably 
have  a  tendency  to  criminate  the  witness,  or  to  furnish  a  link  in 
the  chain  of  evidence  necessary  to  convict  him.  It  must  appear 
from  the  character  of  the  question  and  other  facts  adduced,  that 
there  is  some  tangible  and  substantial  probability  that  the  answer 
of  the  witness  may  help  to  convict  him  of  a  crime. ^  Although  one 
question  in  a  series  does  not  call  for  an  incriminating  answer, 
relief  is  not  denied.  If  it  is  one  step  of  a  series  which  will  tend  to 
incriminate  him,  the  witness  is  not  compelled  to  answer.^  In  the 
trial  of  Aaron  Burr,^  Chief  Justice  Marshall  summed  up  the  rule 
as  follows :  "  It  is  the  province  of  the  court  to  judge  whether  any 
direct  answer  to  the  question  which  may  be  proposed  will  furnish 
evidence  against  the  witness.  If  such  answer  may  disclose  a 
fact  which  forms  a  necessary  and  essential  link  in  the  chain  of 
testimony  which  would  be  sufficient  to  convict  him  of  any  crime 

»In   re    Kanter,    117    Fed.    356;  960   (C.   C.   A.   6th  Cir.) ;    Foot  v. 

United   States  v.   MiUer,  2   Cranch,  Buchanan,    113    Fed.    156,    160    (C. 

C.  C.)  247.  C.   A.   5th   Cir.) ;    United  States  v. 

*  In  re  Levin,  131  Fed.  388.  McCarthy,    18    Fed.    87    (C.    C.    A. 

'  Ex    Parte    Irvine,    74    Fed.    954  2d  Cir.) ;    Mason  v.   United  States, 

(C.  C.  A.  6th  Cir.).  244  U.  S.  362,  61  L.  ed.  1198,  37  S. 

«  Foot  V.  Buchanan,  113  Fed.  156,  C.  621. 
160  (C.  C.  A.  5th  Cir.) ;   In  re  Kan-  «  Foot    v.    Buchanan,    113    Fed. 

ter,    117    Fed.    356;     In   re    Shera,  156,  161  (C.  C.  A.  5th  Cir.). 
114  Fed.  207.  »  Fed.  Cas.  No.  14692  e. 

'  Ex  parte   Irvine,   74  Fed.   954, 
112 


Chap.  XIV]  IN  CASE  of  pardon  [§  125 

he  is  not  bound  to  answer  it,  so  as  to  furnish  matter  for  that 
conviction.  In  such  a  case,  the  witness  himself  must  judge  what 
his  answer  will  be,  and  if  he  say,  on  oath,  that  he  cannot  answer 
without  accusing  himself,  he  cannot  be  compelled  to  answer 
it.  .  .  ." 

§  123.   In  Bankruptcy  Matters. 

Where  a  person  is  under  examination  before  a  referee  in  bank- 
ruptcy, he  is  not  obliged  to  answer  questions  when  he  states  that 
his  answers  might  tend  to  incriminate  him ;  and  this  is  true  not- 
withstanding Section  7  of  the  Bankruptcy  Act  which  provides 
that  "  no  testimony  given  by  him  shall  be  offered  in  evidence 
against  him  in  any  criminal  proceeding."  ^ 

§  124.   Not  Privileged  When  Ofifense  Barred  by  Limitations. 

A  witness  may  be  compelled  to  testify  if  a  prosecution  against 
him  is  barred  by  lapse  of  time,  a  pardon,  or  by  statutory  enact- 
ment.^ A  criminality  provided  against  is  a  present,  not  a  past, 
criminality.^ 

§  125.   In  Case  of  Pardon. 

Granting  that  a  pardon  has  been  legally  issued  and  is  sufficient 
for  immunity,  the  accused  has  a  right  to  refuse  it,  and  as  it  does 
not  become  effective,  his  constitutional  right  to  decline  to  testify 
remains  to  be  asserted  ;  and  his  reasons  for  his  action  are  personal. 
The  differences  between  legislative  immunity  and  a  pardon  are 
substantial.  The  latter  carries  an  imputation  of  guilt.  The 
former  has  no  such  imputation  or  confession.  It  is  tantamount 
to  the  silence  of  the  witness.  It  is  non-committal.  It  is  the  un- 
obtrusive act  of  the  law  giving  protection  against  a  sinister  use 
of  his  testimony,  not  like  a  pardon  requiring  him  to  confess  his 
guilt  in  order  to  avoid  a  conviction  of  it.^ 

§  123.   1  In  re  Rosser,  96  Fed.  305  ;  §  124.   i  Robertson     v.     Baldwin, 

In  re  Feldstein,   103  Fed.  269;    In  165  U.  S.  275,  281,  41  L.  ed.  715, 

re  Shera,  114  Fed.  207 ;   In  re  Walsh,  17  S.  C.  326. 

104  Fed.  518 ;    In  re  Scott,  95  Fed.  -  Hale  v.  Henkel,  201  U.  S.  43,  50 

815 ;    Mackel  v.  Rochester,  102  Fed.  L.  ed.  652,  26  S.  C.  370. 

314,  42  C.  C.  A.  427  (9th  Cir.) ;    In  §  125.   i  Burdick  v.  United  States, 

re  Hess,   134  Fed.  109,   113;    In  re  236  U.  S.  7^,  94,  59  L.  ed.  476,  35 

Snaith,  112Fed.  509.'  S.  C.   267,   Reversing  211   Fed.   491. 

VOL.   1—8  113 


§  126]  PRIVILEGES   AND    IMMUNITIES  [Chap.  XIV 

§  126.  May  Be  Dispensed  With  by  Statute  —  When. 

The  constitutional  guaranty  may  be  lawfully  dispensed  with 
by  an  act  of  Congress  providing  immunity  from  punishment  for 
the  commission  of  the  offense  which  is  established  by  the  evidence 
procured  from  a  defendant.^  Such  a  statutory  enactment,  to  be 
valid,  must  afford  absolute  immunity  against  future  prosecution 
for  the  offense  to  which  the  question  relates.^  Accordingly  it 
has  been  held  that  the  act  of  Congress  ^  exempting  a  witness  from 
any  prosecution  resulting  from  testimony  given  before  the  Inter- 
state Commerce  Commission  was  a  valid  enactment.^  No 
statute  which  leaves  the  party  or  witness  subject  to  prosecution 
after  he  answers  a  criminal  question  put  to  him  can  have  the  effect 
of  supplanting  the  privilege  conferred  by  this  provision.  A 
statutory  enactment,  to  be  valid,  must  afford  absolute  immunity 
against  future  prosecution  for  the  offense  to  which  the  question 
relates.^  There  is  a  clear  distinction  between  an  amnesty  and  the 
constitutional  protection  of  a  party  from  being  compelled  to  be  a 
witness  against  himself.^ 

§  127.   Prosecution  for  Perjury. 

A  prosecution  for  perjury  is  not  prohibited  by  immunity  as  to 
self-incrimination.^  The  immunity  afforded  by  the  Fifth  Amend- 
ment related  to  the  past ;  it  is  not  a  license  to  the  person  testifying 
to  commit  perjury  either  under  the  provisions  of  Revised  Statute 
Section  860,  or  of  the  Bankruptcy  Act.- 

§  126.   >  Brown    v.    Walker,     161  U.  S.  423,  54  L.  ed.  821,  30  S.  C. 

U.  S.  591,  40  L.  ed.  819,  16  S.  C.  644;  539;    United  States  v.  Bell,  81  Fed. 

Hale  V.  Henkel,  201  U.  S.  43,  50  L.  830,  843  (C.  C.  A.  6th  Cir.) ;    GUck- 

ed.   652,   26   S.   C.    370;    Interstate  stein   v.    United    States,    222    U.    S. 

Commerce  Commission  v.  Baird,  194  139,  56  L.  ed.  128,  32  S.  C.  71. 

U.  S.  25,  48  L.  ed.  860,  24  S.  C.  563.  «  Heike    v.    United    States,    227 

« Counsclman    v.    Hitchcock,    142  U.  S.  131,  142,  57  L.  ed.  450,  33  S. 

U.  S.  547,  35  L.   ed.  1110,  12  S.  C.  C.  226. 

195.  §  127.     1  Glickstein      v.      United 

'Act  of  Feb.  11th,  1893,  27  Stat.  States,  222  U.  S.  139,  56  L.  ed.  128, 

L.  443.  32   S.    C.    71 ;     Cameron   v.    United 

<  Brown  v.  Walker,  supra;  Inter-  States,  231  U.  S.  710,  58  L.  ed.  448, 

state  Commerce  Commission  v.  Baird,  34  S.  C.  244 ;   United  States  v.  Bell, 

supra.  81  Fed.  830,  840  (C.  C.  A.  6th  Cir.). 

'  Counsclman    v.    Hitchcock,    142  ^  Glickstein  v.  United  States,  222 

U.  S.  547,  585,  35  L.  ed.  1110,  12  S.  U.  S.  139,  56  L.  ed.  128,  32  S.  C.  71. 
C.  195 ;    Heike  v.  United  States,  217 
114 


Chap.  XIV]        IMMUNITY  under  bankruptcy  act  [§  128 

§  128.   Immunity  under  Bankruptcy  Act. 

The  use  of  testimony  given  by  the  bankrupt  in  a  hearing  before 
a  commissioner  to  contradict  his  testimony  given  before  the 
referee,  in  a  trial  on  an  indictment  for  perjury  in  giving  the  latter 
testimony,  violates  the  immunity  guaranteed  under  Revised 
Statute  Section  8G0,  and  the  use  thereof  is  reversible  error.^  A 
bankrupt  has  a  privilege  against  self-incrimination.  However, 
the  privilege  is  to  suppress  but  not  to  prevent  the  truth  ;  and  when 
a  bankrupt  once  files  his  schedules,  he  asserts  not  only  that  he  has 
the  property  mentioned,  but  also  that  he  has  no  more.  This 
statement  of  fact  should  subject  him  to  all  legitimate  cross-exam- 
ination as  long  as  it  opens  the  way  to  an  independent  fact.^  A 
bankrupt  is  protected  from  criminal  prosecution  by  reason  of  any 
matter  disclosed  by  him  or  growing  out  of  the  bankruptcy  itself, 
provided  he  testifies  truthfully.  However,  if  during  his  exam- 
ination he  testified  falsely  in  a  Court  of  Bankruptcy  as  to  any 
matter  material  to  the  issue,  he  may  be  prosecuted  for  perjury.^ 
It  is  improper  to  introduce  as  evidence  in  a  criminal  case  the  bank- 
rupt's schedules  for  the  purpose  of  showing  a  concealment  of 
assets  from  the  trustee  in  bankruptcy.^  But  the  privilege  against 
self-incrimination  and  the  immunity  granted  by  the  Bankruptcy 
Act  does  not  go  so  far  as  to  relieve  a  bankrupt  from  filing  the 
schedules  as  required  by  the  Bankruptcy  law.^  While  the  plea 
of  constitutional  privilege  must  prevail  upon  an  application  to 
compel  a  bankrupt  to  produce  his  books  and  deliver  them  to  his 
trustee,  yet  he  should  be  required  to  bring  the  books  and  papers 
which  he  alleges  contained  incriminating  evidence  before  either 
the  court  or  the  referee  in  bankruptcy,  and  if  it  appears  that  his 
plea  is  well  founded,  the  court  can  make  such  order  as  will  fully 
protect  him  from  discovery  of  such  evidence,  and  also  if  possible, 

§  128.   1  Cameron  V.  United  States,  U.  S.  139,  5G  L.  ed.  128,  32  S.  C.  71 ; 

231  U.  S.  710,  58  L.  ed.  448,  34  S.  C.  Cameron  v.   United   States,   231    U. 

244,  Reversing  192  Fed.  548,  113  C.  S.  710,  58  L.  ed.  448,  34  S.  C.  244. 

C.  A.  20  (2d  Cir.),  but  see  §117.  Johnson   v.    United   States,    163 

2  In    re    Tobias,    215    Fed.    815 ;  Fed.  30,  89  C.  C.  A.  508  (1st  Cir.) ; 

Johnson  v.  United  States,  163  Fed.  Cohen   v.    United   States,    170   Fed. 

30,  89  C.  C.  A.  508  (1st  Cir.) ;    In  715,  96  C.  C.  A.  35  (4th  Cir.). 

re  Kanter,  117  Fed.  356;   In  re  Feld-  ^  Podolin  v.   Lesher  Warner  Dry 

stein,  103  Fed.  269.  Goods  Co.,  210  Fed.  97,  126  C.  C.  A. 

'  Glickstein  v.  United  States,  222  632  (3d  Cir.). 

115 


§  128]  PRIVILEGES   AND    IMMUNITIES  [Chap.  XIV 

enable  the  trustee  to  obtain  such  information  as  is  necessary  and 
indispensable  in  the  settlement  of  the  estate.^  As  was  said  by  the 
Supreme  Court  in  the  case  of  In  re  Harris  ^  in  deciding  that  the 
bankrupt's  books  belonged  to  the  trustee  in  bankruptcy  and  can- 
not be  withheld  from  him  on  the  ground  that  they  incriminate 
the  bankrupt,  "  that  is  one  of  the  misfortunes  of  bankruptcy  if  it 
follows  crime."  Where  the  bankrupt  claims  his  constitutional 
pri\dlege  under  the  Fifth  Amendment,  and  refuses  to  give  the 
information  required  by  the  Bankruptcy  Act,  on  the  ground  that 
it  may  incriminate  him,  it  at  least  must  appear  to  the  court  from 
the  character  of  the  information  sought  or  the  question  propounded, 
that  his  claim  is  justified ;  or  the  bankrupt  must  produce  facts 
on  which  he  bases  such  claim,  in  order  that  the  court  may  judge 
of  their  sufficiency  to  support  it.^ 

§  129.   Waiver  of  Privilege. 

If  the  witness  himself  elects  to  waive  his  privilege  and  discloses 
his  criminal  connections,  he  is  not  permitted  to  stop  but  must  go 
on  and  make  a  full  disclosure.^  And  a  defendant  who  voluntarily 
takes  the  stand  is  not  protected  by  the  amendment  because  he  was 
not  warned  and  advised  of  his  privilege.^  But  in  an  examination 
before  a  pension  examiner  it  has  been  held  that  the  examiner  must 
warn  a  witness  manifestly  ignorant  of  his  privilege.^  Where  de- 
fendants made  no  objection  to  testifying,  and  did  not  claim  their 
privilege,  it  was  held  that  an  indictment  subsequently  found 
against  them  was  not  subject  to  a  motion  to  quash  because  they 
testified  without  notice  or  warning  that  they  were  testiying 
against  themselves  and  that  they  were  not  compelled  to  do  so.^ 

« In  re  Hess,   134  Fed.   109 ;    In  =  Reagan  v.  United  States,  157  U. 

re  Harris,  164  Fed.  292;   In  re  Hark,  S.  301,  39  L.  ed.  709,  15  S.  C.  610; 

136  Fed.  986.  Powers  v.  United  States,  223  U.  S. 

'221   U.   S.  274,  55  L.  ed.  732,  303,  56  L.  ed.  448,  32  S.  C.  281; 

31  S.  C.  .557.  United  States  v.  Skinner,   218  Fed. 

*  Podolin  V.   Lesher  Warner  Dry  870;     United    States    v.    Wetmore, 

Goods  Co.,  210  Fed.  97,  126  C.  C.  A.  218  Fed.  227;   In  re  Walsh,  104  Fed. 

632  (3d  Cir.) ;   Brown  v.  Walker,  161  518. 

U.  S.  591,  40  L.  ed.  819,  16  S.  C.  644.  '  United  States  v.   Bell,   81   Fed. 

§129.   'United    States    v.    Wet-  830,  853  (C.  C.  A.  6th  Cir.). 

more,  218  Fed.  227,  237;    Brown  v.  "United  States  v.  Wetmore,  218 

Walker,  161  U.  S.  591,  40  L.  ed.  819,  Fed.  227. 
16  S.  C.  644. 

116 


Chap.  XIV] 


POWERS   OF   PROSECUTOR 


[§  130 


§  130.   Power  of  United  States  Attorney  to  Promise  Immunity. 

A  United  States  Attorney  has  no  authority  to  promise  immunity 
to  an  accompHce  upon  his  turning  "  state's  evidence."  ^  But  cir- 
cumstances may  exist  which  may  compel  the  Court  to  dismiss  the 
case  where  the  accused  carried  out  fully  his  agreement  with  the 
prosecuting  attorney  or  the  trial  will  be  adjourned  to  give  the 
defendant  an  opportunity  to  apply  for  a  pardon.^ 


§  130.  1  Whiskey  Cases,  99  U.  S. 
594,  25  L.  ed.  399;  Gladstone  v. 
United  States,  248  Fed.  117,  160  C. 
C.  A.  257  (9th  Cir.),  Certiorari 
denied,  247  U.  S.  521,  62  L.  ed. 
1246,  38  S.  C.  582;  United  States  v. 


Lee,  4  McLean,  103,  Fed.  Cas. 
No.  15588;  United  States  v.  Hinz, 
35  Fed.  272. 

^  United  States  v.  Hinz  et  al.,  35 
Fed.  277 ;  Gladstone  v.  United  States, 
supra. 


117 


CHAPTER  XV 
INDICTMENTS  —  PART  I 

§  131.  Constitutional  Right  to  Indictment. 

§  132.  Grand  Jury  Cannot  Be  Dispensed  with. 

§  133.  Distinction  between  a  Presentment  and  an  Indictment. 

§  134.  Ex  Parte  Character  of  Hearings  before  Grand  Jury. 

§  135.  Prying  into  Personal  Affairs. 

§  136.  Witnesses  before  Grand  Jury. 

§  137.  Common  Law  and  Statutory  Definition  of  Infamous  Crimes. 

§  138.  Right  to  Indictment  Cannot  Be  Waived. 

§  139.  Informing  of  Nature  of  Accusation. 

§  140.  Organization  of  the  Grand  Jury  —  Discretionary  Power  of  Court. 

§  141.  Drawing  of  Jury. 

§  142.  Foreman  to  Be  Appointed. 

§  143.  Number  of  Grand  Jurors  —  Challenges. 

§  144.  Challenge  to  Array  —  Exception  Must  Be  Taken. 

§  145.  Discharge  of  Grand  Juries. 

§  146.  Indictment  Cannot  Be  Returned  by  Less  than  Twelve  Jurors. 

§  147.  Effect  of  Irregular  Selection  of  Grand  Jury. 

§  148.  Time  to  Object  to  Organization  of  Grand  Jury. 

§  149.  Private  Prosecutors  not  Permitted. 

§  150.  Appointment  of  Special  Prosecutors. 

§  151.  Who  May  Be  Present  in  Grand  Jury  Room. 

§  152.  Presence  of  Unauthorized  Persons,  Stenographers  in  Grand  Jury 
Room  —  Ground  for  Quashing. 

§  153.  Deliberations  Must  Be  in  Secret  —  Exception. 

§  154.  Motions  to  Quash  Indictment  When  Based  on  Insufficient  or  In- 
competent Evidence. 

§  155.  Returning  Indictment  into  Court. 

§  156.  Change  in  Indictment. 

§  131.   Constitutional  Right  to  Indictment. 

The  Fifth  Amendment  to  the  Constitution  of  the  United  States 
provides:  "  No  person  shall  be  held  to  answer  for  a  capital,  or 
otherwise  infamous  crime,  unless  on  a  presentment  or  indictment 
118 


.-^:«^i. V*  t»'<-*''«£ 


--*-Wr' 


Chap.  XV]  CONSTITUTIONAL   RIGHTS  [§  133 

of  a  Grand  Jury,  except  in  cases  arising  in  the  land  or  naval  forces, 
or  in  the  Militia,  when  in  actual  service  in  time  of  War  or  public 
danger."  Without  a  good  and  sufficient  indictment  there  can  be 
no  valid  trial  consistent  with  the  "  due  process  of  law  "  clause  of 
the  Constitution  of  the  United  States.^  But  where  one  grand 
jury  failed  to  indict,  the  United  States  Attorney  without  leave  of 
Court,  may  resubmit  the  case  to  another  grand  jury.^ 

§  132.   Grand  Jury  Cannot  Be  Dispensed  With. 

By  the  Constitution  of  the  United  States,  no  person  can  be  held 
to  answer  for  a  capital  or  otherwise  infamous  crime  unless  on  a 
presentment  or  indictment  of  a  grand  jury,  except  in  cases  arising 
in  the  land  or  naval  forces,  or  in  the  militia  when  in  actual  service 
in  time  of  war  or  public  danger.  No  steps,  therefore,  can  be 
taken,  with  the  exceptions  mentioned,  for  the  prosecution  of  any 
crime  of  an  infamous  character  —  and  under  that  designation 
the  whole  series  of  felonies  is  classed  —  beyond  the  arrest,  exam- 
ination and  commitment  of  the  party  accused,  until  the  grand  jury 
have  deliberated  and  acted  upon  the  accusation.^  It  is  not  essen- 
tial that  the  grand  jury  be  first  instructed  or  charged  by  the  Court 
as  to  its  duties.-  And  both  grand  and  petit  juries  may  be  selected 
from  a  part  of  the  district.^ 

§  133.   Distinction  between  a  Presentment  and  an  Indictment. 

The  Constitution  speaks  of  a  presentment  or  indictment  by  a 
grand  jury.  An  indictment  is  a  formal  accusation  made  by  the 
grand  jury  charging  a  party  with  the  commission  of  a  public 
offense.  Formerly  the  public  prosecutor  handed  an  instrument  of 
this  character  to  the  grand  jury,  —  that  is,  a  bill  of  indictment  in 
form,  with  a  list  of  the  witnesses  to  establish  the  offense  charged. 

§  131.   1  Fontana  v.  United  States,  ^  Ruthenberg    v.    United    States, 

262  Fed.  283  (C.  C.  A.  8  Circ.)  245  U.  S.  480,  62  L.  ed.  414,  38  S. 

2  United     States      v.     Thompson  C.  168,  citing  Frisbie  v.  United  States, 

(U.     S.     Supreme     Court      decided  supra,  and  Hale  v.   Henkel,  201  U. 

March  1,  1920).  S.  43,  50  L.  ed.  652,  26  S.  C.  370. 

§  132.   '  Frisbie  v.  United  States,  '  Ruthenberg    v.    United    States, 

157  U.  S.  160,  39  L.  ed.  657,  15  S.  sujrra. 
C.  586;    Mr.  Justice  Field's  charge 
to  Jury,  2  Sawj'cr,  667,   Fed.  Cas. 
No.  18255. 

119 


§  133]  INDICTMENTS  [Chap.  XV 

If  in  such  case  the  jury  found  that  the  evidence  produced  justified 
the  finding  of  an  indictment  they  indorsed  on  the  instrument 
'  A  true  bill  ' ;  otherwise,  '  Not  found  ',  or  '  Not  a  true  Bill  ',  or 
the  words  '  Ignoramus  —  we  know  nothing  of  it '  —  from  the 
use  of  which  latter  word  the  bill  was  sometimes  said  to  be  ignored. 
A  presentment  differs  from  an  indictment  in  that  it  wants  tech- 
nical form,  and  is  usually  found  by  the  grand  jury  upon  their  own 
knowledge,  or  upon  the  evidence  before  them,  without  having 
any  bill  from  the  public  prosecutor.  It  is  an  informal  accusation, 
which  is  generally  regarded  in  the  light  of  instructions  upon 
which  an  indictment  can  be  framed.  This  form  of  accusation  has 
fallen  in  disuse  since  the  practice  has  prevailed,  which  practice 
now  generally  obtains,  for  the  prosecuting  officer  to  attend  the 
grand  jury  and  advise  them  in  their  investigations.  The  govern- 
ment now  seldom  delivers  bills  of  indictment  to  the  grand  jury 
in  advance  of  their  action,  but  generally  awaits  their  judgment 
upon  the  matters  laid  before  them.^  It  is  for  the  grand  jury  to 
investigate  any  alleged  crime,  no  matter  how  or  by  whom  sug- 
gested to  them,  and,  after  determining  that  the  evidence  is 
sufficient  to  justify  putting  the  suspected  party  on  trial,  to  direct 
the  preparation  of  the  formal  charge  or  indictment.^ 

§  134.   Ex  Parte  Character  of  Hearings  before  Grand  Jury. 

An  investigation  before  a  Federal  Grand  Jury  is  not  a  "  suit  '^ 
nor  a  prosecution.^  A  person  whose  conduct  is  being  investigated 
by  a  Federal  Grand  Jury  is  not  entitled  as  of  right  to  present 
his  side  of  the  case  to  the  Grand  Jury.-  At  the  foundation  of 
our  Federal  Government  the  inquisitorial  function  of  the  Grand 
Jury  and  the  compulsion  of  witnesses  were  recognized  as  incidents 
of  the  judicial  power  of  the  United  States.  By  the  Fifth  Amend- 
ment a  presentment  or  indictment  by  Grand  Jury  was  made 

§  133.   1  Mr.  Justice  Field's  charge  250  U.  S.  273,  63  L.  ed.  — ,  39  S.  C. 

to  Jury,  2   Sawyer,  667,    Fed.  Cas.  468;    Post    v.    United     States,    161 

No.    18255;      McKinney   v.    United  U.    S.    583,    40    L.   ed.    816,    16  S. 

States,  199   Fed.    25,   117  C.  C.    A.  C.  611;    Virginia  v.  Paul,  148  U.S. 

403  (8th  Cir.).  107,  37  L.  ed.  386,  13  S.  C.  536. 

^  Frisbic    v.    United    States,    157  ^  United   States   v.    Bollcs,   et  ah, 

U.  S.  160,  39  L.  ed.  657,  15  S.  C.  586.  209  Fed.  682,  and  cases  cited. 

§  134.   '  Blair    v.    United    States, 
120 


Chap.  XV]  HEARINGS    EX    PARTE  [§  134 

essential  to  hold  one  to  answer  for  a  capital  or  otherwise  infamous 
crime,  and  it  was  declared  that  no  person  should  be  compelled  in  a 
criminal  case  to  be  a  witness  against  himself ;  while,  by  the  Sixth 
Amendment,  in  all  criminal  prosecutions  the  accused  was  given 
the  right  to  a  speedy  and  public  trial,  with  compulsory  process  for 
obtaining  witnesses  in  his  favor.^  By  the  first  Judiciary  Act,* 
the  mode  of  proof  by  examination  of  witnesses  in  the  courts  of 
the  United  States  was  regulated,  and  their  duty  to  appear  and 
testify  was  recognized.  These  provisions  are  modified  by  sub- 
sequent legislation.^  By  Act  of  March  2,  1793,^  it  was  enacted 
that  subpoenas  for  witnesses  required  to  attend  a  court  of  the 
United  States  in  any  district  might  run  into  any  other  district, 
with  a  proviso  limiting  the  effect  of  this  in  civil  causes  so  that 
witnesses  living  outside  of  the  district  in  which  the  court  was  held 
need  not  attend  beyond  a  limited  distance  from  the  place  of  their 
residence.^  Witnesses  required  to  attend  any  term  of  the  district 
court  on  the  part  of  the  United  States  may  be  subpoenaed  to  attend 
to  testify  generally;  and  under  such  process  they  shall  appear 
before  the  grand  or  petit  jury  or  both,  as  required  by  the  court  or 
the  district  attorney.^  By  the  same  act  ^  fees  for  the  attendance 
and  mileage  of  witnesses  were  regulated;  and  it  was  provided 
that  where  the  United  States  was  a  party,  the  marshal,  on  the 
order  of  the  court,  should  pay  such  fees.^°  The  statutes  '^  con- 
tain provisions  for  requiring  witnesses  in  criminal  proceedings 
to  give  recognizance  for  their  appearance  to  testify,  and  for  detain- 
ing them  in  prison  in  default  of  such  recognizance.^^  In  all  of 
these  provisions,  as  in  the  general  law  upon  the  subject,  it  is 
clearly  recognized  that  the  giving  of  testimony  and  the  attendance 
upon  court  or  grand  jury  in  order  to  testify  are  public  duties  which 

'Blair  v.  United  States,  supra.  26,  1853,  c.  80,  §  3,  10  Stat.  L.  161, 

*  September  24,  1789,  c.  20,  §  30,  169. 
1  Stat.  L.  73,  88.  ^  Act  of  1853,  10  Stat.  L.  167,  168, 

5  §§  861-865,     Revised      Statute.  c.  80. 
Compiled     Statute     1916,     §§  1468,  "  Revised    Statute     §§  848,    855, 

1470,  1472-1474.  Compiled    Statute     1916,     §§   1452, 

« c.  22,  §  6,  1  Stat.  L.  333,  335.  1461. 

'§876,  Revised  Statute.      Com-  "§§879,  881,  Rev.  Stat.      Com- 
piled Statute  1916,  §  1487.  piled  Statute  1916,  §§  1490,  1492. 

8  §  877,  Compiled  ^Statute    1916,  ^^  Blair  v.  United  States,  supra. 

§  1488,   originating  in  Act  of   Feb. 

121 


§  134]  INDICTMENTS  [Chap.  XV 

every  person  within  the  jurisdiction  of  the  government  is  bound 
to  perform  upon  being  properly  summoned,  and  for  performance 
of  which  he  is  entitled  to  no  further  compensation  than  that 
which  the  statutes  provide.  The  personal  sacrifice  involved  is  a 
part  of  the  necessary  contribution  of  the  individual  to  the  welfare 
of  the  public.  The  duty,  so  onerous  at  times,  yet  so  necessary  to 
the  administration  of  justice  according  to  the  forms  and  modes 
established  in  our  system  of  government,^^  is  subject  to  mitigation 
in  exceptional  circumstances ;  there  is  a  constitutional  exemption 
from  being  compelled  in  any  criminal  case  to  be  a  witness  against 
oneself,  entitling  the  witness  to  be  excused  from  answering  any- 
thing that  will  tend  to  incriminate  him ;  ^^  some  confidential 
matters  are  shielded,  from  considerations  of  policy,  and  perhaps 
in  other  cases  for  special  reasons  a  witness  may  be  excused  from 
telling  all  that  he  knows.^^  But,  aside  from  exceptions  and  qual- 
ifications the  witness  is  bound  not  only  to  attend,  but  to  tell  what 
he  knows  in  answer  to  questions  framed  for  the  purpose  of  bringing 
out  the  truth  of  the  matter  under  inquiry.  He  is  not  entitled  to 
urge  objections  of  incompetency  or  irrelevancy,  such  as  a  party 
might  raise,  for  this  is  no  concern  of  his.^^  On  familiar  principles, 
he  is  not  entitled  to  challenge  the  authority  of  the  court  or  of  the 
grand  jury,  provided  they  have  a  de  facto  existence  and  organ- 
ization. He  is  not  entitled  to  set  limits  to  the  investigation  that 
the  grand  jury  may  conduct.  The  Fifth  Amendment  and  the 
statutes  relative  to  the  organization  of  grand  juries  recognize 
such  a  jury  as  being  possessed  of  the  same  powers  that  pertained 
to  its  British  prototype,  and  in  our  system  examination  of  wit- 
nesses by  a  grand  jury  need  not  be  preceded  by  a  formal  charge 
against  a  particular  individual  .^^  It  is  a  grand  inquest,  a  body 
with  powers  of  investigation  and  inquisition,  the  scope  of  whose 
inquiries  is  not  to  be  limited  narrowly  by  questions  of  propriety 
or  forecasts  of  the  probable  result  of  the  investigation,  or  by 

"  Wilson  V.  United  States,  221  U.  '^  Blair  v.  United  States,  supra. 

S.  361,  372,  55  L.  ed.  771,  776,  31  is  Nelson   v.    United   States,    201 

S.   C.   538,   Ann.   Cas.    1912D,   508,  U.  S.  92,  115,  50  L.  ed.  673,  685,  26 

quoting  Lord  Ellcnborough.  S.  C.  358. 

'^  Brown   v.    Walker,    161    U.    S.  "  Hale  v.  Henkel,  201  U.  S.  43, 

591,  40  L.  ed.  819,  5  Inters.  Com.  65,  50  L.  cd.  652,  661,  26  S.  C.  370. 
369,  16  S.  C.  644. 
122 


Chap.  XV]  WITNESSES   BEFORE   GRAND   JURY  [§  136 

doubts  whether  any  particular  individual  will  be  found  properly- 
subject  to  an  accusation  of  crime.  As  has  been  said  before,  the 
identity  of  the  offender,  and  the  precise  nature  of  the  offense,  if 
there  be  one,  normally  are  developed  at  the  conclusion  of  the 
grand  jury's  labors,  not  at  the  beginning.^^  And,  for  the  same 
reasons,  witnesses  are  not  entitled  to  take  exception  to  the  juris- 
diction of  the  grand  jury  or  the  court  over  the  particular  subject- 
matter  that  is  under  investigation.  In  truth  it  is,  in  the 
ordinary  case,  no  concern  of  one  summoned  as  a  witness 
whether  the  offense  is  within  the  jurisdiction  of  the  court 
or  not.  At  least,  the  court  and  grand  jury  have  authority  and 
jurisdiction  to  investigate  the  facts  in  order  to  determine 
the  question  whether  the  facts  show  a  case  within  their  juris- 
diction.^^ But  an  indictment  may  be  found  without  a  prelimi- 
nary examination.^"  An  indictment  is  only  evidence  of  its  own 
existence.^^ 

§  135.  Prymg  into  Personal  Affairs. 

Neither  branch  of  the  legislative  department,  still  less  an 
administrative  body,  established  by  Congress,  possesses,  nor  can 
be  invested,  with  a  general  power  of  making  inquiry  into  the 
private  affairs  of  a  citizen.  It  is  the  duty  of  the  Court  to  repress 
such  action.^ 

§  136.  Witnesses  before  Grand  Jury. 

A  witness  called  before  the  grand  jury  is  a  witness  in  a  "  Court 
of  the  United  States  ",  and  may  be  punished  for  perjury  before 
that  body.^ 

"  Hendricks  v.  United  States,  223  168,  26  L.  ed.  377 ;   Interstate  Com- 

U.  S.  178,  184,  56  L.  ed.  394,  397,  merce  Commission  v.  Brimson,  supra; 

32S.  C.  313;  Blair  v.  United  States,  Boyd  v.   United   States,    116   U.   S. 

supra.  616,  29  L.  ed.  746,  6  S.  C.  524 ;    Re 

"  Blair  v.  United  States,  supra.  Pacific  Railway  Comm.,  32  Fed.  241. 

20  United  States  v.  Baumert,   179  §  136.   i  Hendricks       v.       United 

Fed.  735.  States,  223  U.  S.  178,  56  L.  ed.  394, 

"United    States   v.    Poage,    Fed.  32S.  C.  313;  Davey  ?;.  United  States, 

Cas.  No.  16059,  6  McLean,  89.  208  Fed.  237   (C.  C.  A.  7th  Cir.) ; 

§  135.   1  Hale  v.   Henkel,   201   U.  Ex  parte  Savin,   131  U.  S.  267,  33 

S.  43,  50  L.  ed.  652...  26  S.  C.  370;  L.  ed.  150,  9   S.  C.    699.     See  also 

Kiibourn   v.   Thompson,    103   U.   S.  perjury. 

123 


§  137]  INDICTMENTS  [Chap.  XV 

§  137.  Common  Law  and  Statutory  Definition  of  Infamous 
Crimes. 

The  first  question  to  be  considered  is  what  are  infamous  crimes. 
A  crime  is  infamous  if  it  is  punishable  by  imprisonment  in  the 
penitentiary.^  And  what  punishments  shall  be  considered  as 
infamous  may  be  affected  by  the  changes  of  public  opinion  from 
one  age  to  another.^  In  addition  to  the  above  definition,  Con- 
gress ^  provided  that :  "All  offenses  which  may  be  punishable  by 
death,  or  imprisonment  for  a  term  exceeding  one  year,  shall  be 
deemed  felonies.  All  other  offenses  shall  be  deemed  mis- 
demeanors." In  determining  whether  a  crime  is  infamous,  the 
question  is  whether  it  is  one  for  which  the  statute  authorizes  the 
court  to  award  an  infamous  punishment,  and  not  whether  the 
punishment  ultimately  awarded  is  an  infamous  one.^ 

§  138.   Right  to  Indictment  Cannot  Be  Waived. 

A  party  cannot  waive  his  constitutional  right  to  an  indictment. 
If  the  crime  is  of  such  a  nature  that  an  indictment  is  required 
by  law,  the  court  has  no  jurisdiction  to  try  without  it.^  The 
reason  for  this  rule  is  that  the  public  has  an  interest  in  the  life 
and  liberty  of  the  accused.  Neither  of  these  can  be  taken  except 
in  the  mode  prescribed  by  law.  That  which  the  law  makes  essen- 
tial in  proceedings  involving  the  deprivation  of  life  and  liberty 
cannot  be  dispensed  with  or  affected  by  the  consent  of  the  accused, 

§  137.   1  Matter   of   Classen,    140  178  U.  S.  304,  44  L.  ed.  1078,  20  S.  C. 

U.  S.  200,  35  L.  ed.  409,  11  S.  C.  735;  944;    Matter  of  Classen,  140  U.  S. 

Mackin  v.  United  States,  117  U.  S.  200,  35  L.  ed.  409,   11  S.  C.  785; 

348,  351,  29  L.  ed.  909,  6  S.  C.  777 ;  Weeks   v.   United  States,   216   Fed. 

Ex  parte  Wilson,  114  U.  S.  417,  29  292,    132   C.   C.   A.   436    (2d  Cir.) ; 

L.  ed.  89,  5  S.  C.  935;    In  re  Bain,  Dickinson    v.     United    States,     159 

121  U.  S.  1,  30  L.  ed.  849,  7  S.  C.  Fed.  801,  86  C.  C.  A.  625  (1st  Cir.) ; 

781 ;     Parkinson    v.    United    States,  Ex  parte  Wilson,  114  U.  S.  417,  423, 

121  U.  S.  281,  30  L.  cd.  959,  7  S.  C.  29  L.  ed.  89,  5  S.  C.  935;   Mackin  v. 

896;     Ex    parte    Mills,    135    U.    S.  United  States,   117  U.  S.  348,  351, 

203,  34  L.  cd.  107,  10  S.  C.  762.  29  L.  cd.  909,  6  S.  C.  777. 

2  Mackin    v.    United   States,    117  §138.   i  Thompson  v.   Utah,   170 

U.  S.  348,  351,  29  L.  ed.  909,  6  S.  C.  U.  S.  343,  42  L.  ed.  1061,  18  S.  C. 

777;    Weems  v.  United  States,  217  620;    Ex  parte  McClusky,  40  Fed. 

U.  S.  349,  54  L.  ed.  793,  30  S.  C.  544.  71,  74 ;  Cruikshank  v.  United  States, 

•Section     335     of     the     Federal  92  U.  S.  542,  547,  23  L.  ed.  588; 

Penal  Code.  Hopt  v.   Utah,    110   U.   S.   574,   28 

*  Fitzpatrick    v.     United    States,  L.  ed.  262,  4  S.  C.  202. 
124 


Chap.  XV]        INFORMING   OF   NATURE   OF   ACCUSATION  [§  139 

much  less  by  his  failure,  when  on  trial  and  in  custody,  to  object 
to  unauthorized  methods.^ 

§  139.  Informing  of  Nature  of  Accusation. 

The  constitutional  right  to  be  informed  of  the  nature  and  cause 
of  the  accusation  is  a  reafhrmance  of  the  essential  principles  of 
the  common  law  and  puts  it  beyond  the  power  of  either  Congress 
or  the  courts  to  abrogate  them.^  The  sufficiency  of  an  indictment 
must,  in  large  part,  be  tested  by  the  fact  as  to  whether  it  accurately 
advises  the  defendant,  as  well  as  the  Court,  of  the  acts  of  which 
the  former  is  accused.^  There  are  two  principles  by  which  it  may 
be  determined  whether  the  accused  has  been  informed  of  the  nature 
of  the  accusation  within  the  meaning  of  the  Constitution :  first, 
that  it  must  be  sufficiently  certain  to  enable  him  to  plead  jeopardy 
in  a  subsequent  indictment,  and,  second,  that  it  must  be  suflB- 
ciently  certain  as  a  pleading  to  enable  him  to  make  his  defense.^ 
Whether  a  particular  crime  is  of  a  certain  kind  is  a  question  of 
law.  The  accused,  therefore,  has  the  right  to  have  a  specifi- 
cation of  the  charge  against  him  in  this  respect,  in  order  that 
he  may  decide  whether  he  should  present  his  defense  by  motion 
to  quash,  demurrer  or  plea,  and  the  Court,  that  it  may  de- 
termine whether  the  facts  will  sustain  the  indictment.^  The 
reason  for  this  rule  is  that  generally  in  determining  whether 
a  person  has  been  put  once  in  jeopardy  for  the  same  offense 
the  evidence  on  the  trial  may  not  be  available  and  the  in- 
dictment and  judgment  alone  can  be  considered,  because  the 

*  Thompson  t>.  Utah,  s-wpro.  688;     Smith   t;.    United   States,    157 

§  139.   1  United  States  v.  Howard,  Fed.  721,  85  C.  C.  A.  353  (8th  Cir.) ; 

132   Fed.    325;     Fontana  v.    United  Writ  of  Certiorari  denied  208  U.  S. 

States,  262  Fed.   283   (C.  C.  A.  8th  618,  52  L.  ed.  647,  28   S.  C.  569; 

Cir.) ;    Miller  v.  United  States,   133  United    States   v.    Aviles,    222    Fed. 

Fed.  337,  66  C.  C.  A.  399,  403  (8th  474 ;    United  States  v.  Ruroede,  220 

Cir.)  ;  Naftzger  v.  United  States,  200  Fed.  212 ;    United   States  v.  Cruik- 

Fed.  494,  118  C.  C.  A.  598,  604  (8th  shank,  92  U.  S.  542,  547,  23  L.  ed. 

Cir.) .  588 ;  Fontana  v.  United  States,  supra. 

2  Cochran   v.   United   States,    157  *  Keck  v.   United  States,    172  U. 

U.  S.   286,  290,  39  L.  ed.   704,   15  S.  434,  43  L.  ed.  505,  19  S.  C.  254 ; 

S.  C.  628 ;   Fontana  v.  United  States,  United  States  v.  Cruikshank,  92  U. 

supra.  S.  542,  558,  23  L.  ed.  588;    Fontana 

« Burton    v.    United    States,    202  v.  United  States,  262  Fed.  283   (C. 

U.  S.  344,  50  L.  ed.  1057,  26  S.  C.  C.  A.  Sth  Cir.). 

125 


§  139]  INDICTMENTS  [Chap.  XV 

evidence  unless  preserved  by  a  bill  of  exceptions,  does  not  be- 
come a  part  of  the  judgment.^ 

§  140.  Organization  of  the  Grand  Jury  —  Discretionary  Power 
of  Court. 

"  No  grand  jury  shall  be  summoned  to  attend  any  district 
court  unless  the  judge  thereof,  in  his  own  discretion  or  upon  a 
notification  by  the  district  attorney  that  such  jury  will  be  needed, 
orders  a  venire  to  issue  therefor.  If  the  United  States  attorney 
for  any  district  which  has  a  city  or  borough  containing  at  least 
three  hundred  thousand  inhabitants  shall  certify  in  writing  to  the 
district  judge  or  the  senior  district  judge  of  the  district  that  the 
exigencies  of  the  public  service  require  it,  the  judge  may,  in  his 
discretion,  also  order  a  venire  to  issue  for  a  second  grand  jury. 
And  said  court  may  in  term  order  a  grand  jury  to  be  summoned 
at  such  time,  and  to  serve  such  time  as  it  may  direct,  whenever  in 
its  judgment  it  may  be  proper  to  do  so.  But  nothing  herein 
shall  operate  to  extend  beyond  the  time  permitted  by  law  the 
imprisonment  before  indictment  found  of  a  person  accused  of  a 
crime  or  offense,  or  the  time  during  which  a  person  so  accused 
may  be  held  under  recognizance  before  indictment  found."  ^ 
A  grand  jury,  by  which  presentments  or  indictments  may  be  made 
for  offenses  against  the  United  States,  is  a  creature  of  statute. 
It  cannot  be  impaneled  by  a  court  of  the  United  States  by  virtue 
simply  of  its  organization  as  a  judicial  tribunal.^  Every  step 
required  by  law  to  be  taken  in  impaneling  the  grand  jury  must 
be  taken.  Whatever  is  essential  in  a  criminal  proceeding  to 
deprive  a  person  of  his  liberty  must  appear  of  record  and  nothing 
is  taken  by  intendment  or  implication.^  A  grand  jury  cannot  be 
called  without  an  order  of  court.  The  method  of  summoning  is 
by  venire  facias.'^    When  it  appears  that  the  United  States  Marshal 

""  Fontana  V.  United  States,  SM/wa;  ''Ex  parte  Mills,  135  U.  S.  263, 

Floren  v.  United  States,  186  Fed.  961,  34  L.  ed.  107,  10  S.  C.  762. 
108  C.  C.  A.  577  (8  th  Cir.)  ;  Winters  »  Hopt  v.   Utah,    110  U.   S.   574, 

V.  United  States,  201   Fed.  845,  120  28  L.  cd.  262,  4  S.  C.  202 ;    Ball  v. 

C.  C.  A.  175.     And  consult  chapter  United  States,  140  U.  S.  118,  35  L. 

on  FoiiMEu  JEOPARDY.  ed.  377,  11  S.  C.  761. 

§   140.   '  Federal    Judicial    Code,  *  United  States  v.  Antz,   16  Fed. 

§  284.  119. 
126 


Chap.  XV]       NUMBER    OF   GRAND   JURORS  —  CHALLENGES  [§  143 

is  not  wholly  disinterested,  it  is  the  duty  of  the  Court  to  appoint 
a  special  officer  to  serve  the  venire.^ 

§  141.   Drawing  of  Jury. 

"  All  such  jurors,  grand  and  petit,  including  those  summoned 
during  the  session  of  the  court,  shall  be  publicly  drawn  from  a  box 
containing,  at  the  time  of  each  drawing,  the  names  of  not  less 
than  tlu-ee  hundred  persons,  possessing  the  qualifications  pre- 
scribed in  the  section  last  preceding,  which  names  shall  have  been 
placed  therein  by  the  clerk  of  such  court  or  a  duly  qualified  deputy 
clerk  and  a  commissioner,  to  be  appointed  by  the  judge  thereof, 
or  by  the  judge  senior  in  commission  in  districts  having  more 
than  one  judge,  which  commissioner  shall  be  a  citizen  of  good 
standing,  residing  in  the  district  in  which  such  court  is  held,  and 
a  well-known  member  of  the  principal  political  party  in  the  district 
in  which  the  court  is  held  opposing  that  to  which  the  clerk  or  a 
duly  qualified  deputy  clerk  then  acting  may  belong,  the  clerk  or  a 
duly  qualified  deputy  clerk  and  said  commissioner  each  to  place 
one  name  in  said  box  alternately,  without  reference  to  party 
affiliations,  until  the  whole  number  required  shall  be  placed 
therein."  ^  The  court  in  its  discretion  may  summon  additional 
jurors.^  A  deputy  clerk  may  substitute  the  clerk  in  drawing  the 
jury  in  the  event  the  latter  is  incapacitated,  sick,  absent  or  dis- 
abled, and  grand  jurors  may  be  drawn  by  him  without  affecting 
the  validity  of  the  indictment.^ 

§  142.   Foreman  to  Be  Appointed. 

"  From  the  persons  summoned  and  accepted  as  grand  jurors, 
the  court  shall  appoint  the  foreman,  who  shall  have  power  to 
administer  oaths  and  affirmations  to  witnesses  appearing  before 
the  grand  jury."  ^ 

§  143.   Number  of  Grand  Jurors  —  Challenges. 
"  Every  grand  jul"y  impaneled  before  any  district  court   shall 
consist  of  not   less  than   sixteen,   nor  more   than  twenty-three 

'  Johnson  v.   United   States,    247  ^  United  States  v.  Nevin,  199  Fed. 

Fed.  92  (C.  C.  A.  9th  Cir.).  831. 

§  141.   1  Federal    Judicial     Code,  ^  United    States    v.     Rockefeller, 

§  276    as    amended   by   the   Act    of  221  Fed.  462. 

February  3,    1917,   c.   27,   39  Stat.  §  142.   i  Federal     Judicial     Code, 

L.  873.  "  §  283. 

127 


§  143]  INDICTMENTS  [Chap.  XV 

persons.  If  of  the  persons  summoned  less  than  sixteen  attend, 
they  shall  be  placed  on  the  grand  jury,  and  the  court  shall  order 
the  marshal  to  summon,  either  immediately  or  for  a  day  fixed, 
from  the  body  of  the  district,  and  not  from  the  bystanders,  a 
sufficient  number  of  persons  to  complete  the  grand  jury.  And 
whenever  a  challenge  to  a  grand  juror  is  allowed,  and  there  are 
not  in  attendance  other  jurors  sufficient  to  complete  the  grand 
jury,  the  court  shall  make  a  like  order  to  the  marshal  to  summon  a 
sufficient  number  of  persons  for  that  purpose."  ^ 

§  144.    Challenge  to  Array  —  Exception  Must  Be  Taken. 

But  a  challenge  to  a  grand  jury,  based  on  the  mere  ground  of 
irregularity  in  its  organization,  is  not  regarded  with  much  favor.^ 
Unless  an  exception  is  duly  taken  to  the  overruling  of  a  motion 
in  arrest  of  judgment  challenging  the  validity  of  the  organization 
of  the  grand  jury  which  found  the  indictment  against  the  accused, 
the  error  will  not  be  reviewed  in  the  Appellate  Court.^  And  in 
the  absence  of  proof  to  the  contrary,  the  court  will  assume  that 
the  District  Attorney  and  the  grand  jury  proceeded  according  to 
the  law  and  that  the  proceedings  are  regular  in  all  respects.^ 

§  145.   Discharge  of  Grand  Juries. 

"  The  district  courts,  the  district  courts  of  the  Territories,  and 
the  Supreme  Court  of  the  District  of  Columbia  may  discharge 
their  grand  juries  whenever  they  deem  a  continuance  of  the  sessions 
of  such  juries  unnecessary."  ^ 

§  146.  Indictment  Cannot  Be  Returned  by  Less  than  Twelve 
Jurors. 

"  No  indictment  shall  be  found,  nor  shall  any  presentment  be 
made,  without  the  concurrence  of  at  least  twelve  grand  jurors"  ^ 
"  If  a  grand  jury  not  properly  organized  as  such,  for  instance,  with 

§  143.    >  Federal     Judicial     Code,  U.   S.    156,  49  L.  ed.  994,  25  S.  C. 

§  282.  617. 

§  144.    »  Wolfson  V.  United  States,  »  United  States  v.  Terry,  39  Fed. 

101   Fed.  430,  41  C.  C.  A.  422  (5th  355;     United  States  v.   Nevin,    199 

Cir.) ;     Writ  of    Certiorari  denied  in  Fed.  831. 

180  U.  S.  637,  45  L.  cd.  710,  21  S.  C.  §  145.   >  Federal     Judicial     Code, 

919.  §  285. 

2  Rodriguez  v.  United  States,  198  §  146.   '  Revised  Statutes,  §  1021. 

128 


Chap,  XV]  RETURNING   INDICTMENTS  [§  148 

less  than  the  number  required  by  the  statute,  should  present  even 
a  guilty  man  for  trial,  his  rights  would  be  invaded,  and  it  would 
not  be  for  a  moment  contended  that  such  a  proceeding,  as  against 
a  timely  plea,  could  have  validity.  .  .  ."  ^ 

§  147.  Effect  of  Irregular  Selection  of  Grand  Jury. 

The  courts  are  not  unanimous  upon  the  effect  of  an  irregular 
selection  of  the  grand  jury.  Thus  in  United  States  v.  Murphy,^ 
and  Lewis  v.  United  States,^  it  was  held  that  the  selection  of  a 
grand  jury  is  a  matter  of  substance  and  not  a  mere  formality  and 
the  defect  may  be  availed  of  by  motion  to  quash,  while  the  con- 
trary was  held  in  United  States  v.  Breeding.^  The  Supreme 
Court  of  the  United  States,  however,  held  that  material  irregu- 
larities in  selecting  and  impaneling  a  grand  jury,  which  do  not 
relate  to  the  competency  of  individual  jurors,  may  usually  be 
objected  to  by  challenge  to  the  array  or  motion  to  quash,  provided, 
that  the  objection  is  made  promptly.  Five  days  was  held  to  be 
too  long  a  delay.'*  It  also  held  that  disqualification  of  grand 
jurors  cannot  be  regarded  as  mere  matters  of  form.^  It  was  held 
in  an  early  case  ^  that  a  person  convicted  and  sentenced  to  im- 
prisonment for  larceny  upon  an  indictment  found  by  a  grand  jury 
impaneled  without  authority  of  law  would  be  illegally  convicted 
and  sentenced,  and  therefore  restrained  of  his  liberty  without  due 
process  of  law.^ 

§  148.   Time  to  Object  to  Organization  of  Grand  Jury. 

Where  the  whole  proceeding  of  forming  the  panel  is  void,  as 
where  the  jury  is  not  a  jury  of  the  court  or  term  in  which  the 
indictment  is  found,  or  has  been  selected  by  persons  having  no 
authority  whatever  to  select  them ;  or  where  they  have  not  been 
sworn ;  or  where  some  fundamental  requisite  has  not  been  com- 
plied with,  the  objection  may  be  made  at  any  time.^     But  the 

2  Per  Whitson,  J.,  in  United  States  U.  S.  36,  41  L.  ed.  624,  17  S.  C. 
V.  Wells,  163  Fed.  313,  citing  United      235. 

States  V.  Gale,  109  U.  S.  71,  27  L.  ^  Crowley  v.  United  States,  194  U. 

ed.  857,  3  S.  C.  1.  S.  461,  48  L.  ed.  1075,  24  S.  C.  371. 

§  147.   1  224  Fed.  554.  •  Ex  parte  Farley,  40  Fed.  66. 

» 192  Fed.  633.  ^  Ex  parte  Farley,  40  Fed.  66. 

3  207  Fed.  645.         ^  §  148.   i  United    States    v.    Gale, 
*  Agnew    V.    United    States,    165  109  U.  S.  65,  27  L.  ed.  857,  3  S.  C.  1. 

VOL.  1—9  129 


§  148]  INDICTMENTS  [Chap.  XV 

objection  that  there  was  no  venire  facias  summoning  the  grand 
jury  is  waived  unless  seasonably  raised.^ 

§  149,   Private  Prosecutors  Not  Permitted. 

Under  the  Federal  practice  from  the  earliest  times,  and  by 
force  of  the  statute,  the  United  States  Attorney  is  the  onh'  pros- 
ecutor known  to  our  law.^ 

§  150.   Appointment  of  Special  Prosecutors. 

The  law  of  the  United  States  does  not  prohibit  the  appoint- 
ment of  special  prosecutors,  provided  the  latter  are  paid  by  the 
government  and  not  by  private  parties.^  Congress  passed  the 
following  statute  on  the  subject :  "  An  Act  to  authorize  the  com- 
mencement and  conduct  of  legal  proceedings  under  the  direc- 
tion of  the  Attorney-General.^  The  attorney-general  or  any 
officer  of  the  Department  of  Justice,  or  any  attorney  or  coun- 
sellor specially  appointed  by  the  attorney-general  under  any 
provision  of  law,  may,  when  thereunto  specifically  directed  by 
the  attorney-general,  conduct  any  kind  of  legal  proceeding,  civil 
or  criminal,  including  grand  jury  proceedings  and  proceedings 
before  committing  magistrates,  which  district  attorneys  now  are 
or  hereafter  may  be  by  law  authorized  to  conduct,  whether  or 
not  he  or  they  be  residents  of  the  district  in  which  such  pro- 
ceeding is  brought."  ^ 

§  151.   Who  May  Be  Present  in  Grand  Jury  Room. 

It  is  beyond  question  that  no  person,  other  than  a  witness  under- 
going examination,  and  the  attorney  for  the  government  can  be 
present  during  the  sessions  of  the  grand  jury.  The  rule  is  inherent 
in  the  grand  jury  system  with  all  the  force  of  a  statutory  enact- 
ment.   The    cases    where    bailiffs    and    stenographers    have    on 

Approved    in    Rodriguez     v.    United  8  Fed.  232 ;  United  States  v.  McAvoy, 

States,  198  U.  S.  156,  1G3,  49  L.  ed.  4    Blatch.    418 ;     United    States    v. 

994,    25  S.  C.  617 ;  Contra :    Mcln-  Blaisdell,  3  Ben.  132. 
erney  v.  United  States,  147  Fed.  183,  §  150.   i  Terry   v.    United   States, 

77  C.  C.  A.  411  (1st  Cir.).  235  Fed.  701  (C.  C.  A.  6th  Cir.). 

2  Powers    V.    United    States,    223  ^  Act  of  June  30th,  1906,  c.  3935, 

U.   S.   303,   at  312,   56  L.  ed.   448,  34  Stat.  L.  816. 
32  S.  C.  281.  »  34  Stat.  L.  816. 

§  149.   1  United  States  v.   Stone, 
130 


Chap.    XV]  DELIBERATIONS    MUST    BE    IN    SECRET  [§  153 

occasions  been  temporarily  present  in  the  grand  jury  room  are 
only  apparent  exceptions.  The  rule,  in  its  spirit  and  purpose, 
admits  of  no  exception.^  The  United  States  Attorney  has  no 
right  to  participate  nor  be  present  during  the  deliberations  of  the 
grand  jury.^ 

§  152.  Presence  of  Unauthorized  Persons,  Stenographers  in 
Grand  Jury  Room  —  Ground  for  Quashing. 

The  right  of  the  citizen  to  an  investigation  by  a  grand  jury 
pursuant  to  the  law  of  the  land  is  invaded  by  the  participation  of 
unauthorized  persons  in  such  proceedings.  It  is  not  necessary 
that  participation  should  be  corrupt,  or  that  unfair  means  were 
used.  If  the  person  participating  was  unauthorized,  it  was  un- 
lawful. Anindictment  will  therefore  be  quashed  because  of  the 
presence  of  a  stenographer  in  the  grand  jury  room.^  For  the 
same  reason  the  presence  of  an  expert  before  the  grand  jury,  under 
a  special  appointment  of  the  Attorney-General,  was  held  illegal, 
and  the  indictment  was  quashed.  The  procedure  to  reach  the 
point  that  other  persons  than  those  authorized  by  law  were 
present  in  the  grand  jury  room  during  the  deliberations  by  the 
jury  is  usually  by  motion  supported  by  affidavits.^  An  affidavit 
charging  that  certain  persons  were  "  present  in  the  grand  jury 
room  during  the  entire  sessions  "  is  too  indefinite  to  have  any 
action  thereon.^ 

§  153.   Deliberations  Must  Be  in  Secret  —  Exception. 

"  You  are  also  to  keep  your  own  deliberations  secret ;  you  are 
not  at  liberty  even  to  state  that  you  have  had  a  matter  under  con- 
sideration. Great  injustice  and  injury  might  be  done  to  the  good 
name  and  standing  of  a  citizen  if  it  were  known  that  there  had  ever 

§  151.   1  United  States  v.   Rubin,  §  152.   i  United  States   v.   Rubin, 

218    Fed.    245;     United    States    v.  218    Fed.    245;      United    States    v. 

Edgerton,     80     Fed.     374;      United  Philadelphia    &    R.    Ry.    Co.,    221 

States  V.  Rosenthal,   121   Fed.  862 ;  Fed.  G83 ;    Latham  v.  United  States, 

United  States  v.  Heinze,  177  Fed.  770.  226  Fed.  420,  141  C.  C.  A.  250  (5th 

2  United     States     v.     WeUs,     163  Cir.). 
Fed.    313 ;     United    States    v.    Ivil-  ^  United  States  v.  Terry,  39  Fed. 

Patrick,  16  Fed.  765 ;  Charge  to  Jury,  355. 

Fed.  Cas.  No.   18255,  2  Saw.  667;  'Radford  v.   United  States,    129 

United  States  v.  Terry,  39  Fed.  355.  Fed.  49,  63  C.  C.  A.  491  (2d  Cir.). 

131 


§   153]  INDICTMENTS  [Chap.  XV 

been  before  you  for  deliberation  the  question  of  his  guilt  or 
innocence  of  a  public  offense.  You  will  allow  no  one  to  ques- 
tion you  as  to  your  own  action  or  the  action  of  your  associates 
on  the  grand  jury."^  There  is,  however,  no  impropriety  on 
the  part  of  a  grand  juror  in  disclosing  the  evidence  before  a 
grand  jury  after  an  indictment  has  been  returned  and  the  jury 
is  discharged.^ 

§  154.  Motions  to  Quash  Indictment  When  Based  on  In- 
sufficient or  Incompetent  Evidence.  ^_,_^ 
AYThe  first  essential  is  that  a  motion  to  quash  an  indictment  must 
he  made  before  pleading  to  the  merits,^  Mr.  Justice  Field,  in  his 
ffamous  charge  to  the  jury,^  laid  down  the  rule  that  to  justify  the 
'finding  of  an  indictment,  the  grand  jury  must  be  convinced  from 
jthe  evidence  submitted  to  it  that  the  accused  is  guilty,  and  that 
[the  evidence  is  so  strong  that  if  unexplained  or  uncontradicted 
'it  would  warrant  a  conviction  before  a  petit  jury.  No  person 
should  be  subjected  to  the  expense,  vexation  and  contumely  of  a 
trial  for  a  criminal  offense  unless  the  charge  has  been  investigated, 

land  a  reasonable  foundation  laid  for  an  indictment  or  information.^ 
"  Nor  can  an  indictment  be  found  until  after  an  examination  of 
witnesses,  under  oath,  by  grand  jurors  —  the  chosen  instruments 
of  the  law  to  protect  the  citizen  against  unfounded  prosecutions, 
whether  they  be  instituted  by  the  government  or  prompted  by_ 
private   malice/^J_^The    complete   protection    of    the    rights    of 

/  citizens  must  necessarily  commence,  and  does  commence,  at  the 
inception  of  any  criminal  proceeding.     It  not  infrequently  happens 

\  that   persons    are    accused   of    crime,  even    though    their   com- 

\plete    innocence    is    ultimately    satisfactorily    established.     An 


§  153.   1  Mr.  Justice  Field,  2  Saw-  §  154.   i  Dowdell  v.  United  StaleaT 

yer,  667.     See  also  United  States  v.  221  U.  S.  325,  35  L.  ed.  753,  31  S.  C. 

Ambrose,  3  Fed.  283 ;   United  States  590. 

V.   Cobban,    127   Fed.   713;    United  ^2  Sawyer,  667;    Fed.  Cas.  No. 

States    V.    Brown,   1    Sawyer,    533 ;  18255. 

United  States  v.  Farrington,  5  Fed.  '  United  States  v.   Farrington,   5 

343.  Fed.  343  ;    Radford  v.  United  States, 

2Atwell    V.    United    States,     162  129  Fed.  49,  63  C.  C.  A.  491  (2d  Cir.). 

Fed.  97,  89  C.  C.  A.  97  (4th  Cir.);  •'Per  Mr.  Justice  Lunar,  United 

United  States  v.  Perlman,  247  Fed.  States  ;;.  Morgan,  222  U.  S.  282,  56 

158.  L.  ed.  198,  32  S.  C.  81. 
132 


Chap.  XV]  MOTIONS  TO  QUASH  [§  154 

unblemished  reputation  is  a  valuable  asset  to  every  individual ;  \ 
and  experience  has  shown  that  great  harm  may  flow  to  one  un- 
justly accused,  even  though  such  person  ultimately  establishes  his 
innocence.     These  reasons  are  sufficient  to  sustain  the  doctrine 
that  the  grand  jury  is  forbidden  to  make  an  accusation  against  a  i; 
person  without  legal  evidence  to  support  it.^  ''An  indictment'wilTT 
(    be  quashed  on  motion  of  the  defendant  if  incompetent  or  hearsay  \ 
evidence  was  presented  to  the  grand  jury  and  on  such  a  motion   | 
it  is  not  necessary  to  show  that  the  grand  jury  was  influenced  by    ■ 
such  testimony.®    An  indictment  can  only  be  found  upon  the 
testimony  of  a  competent  and  material  witness  who  must  be  sworn 
and  examined  before  the  grand  jury.     Where  the  information  is 
obtainable,    a   motion    to   dismiss   the    indictment    based    upon 
affidavits  may  be  made  at  any  time  before  trial  or  on  a  motion 
in   arrest   of  judgment.^  ( The   question   of  insufficiency   of   the 
evidence  before  the  grand  jury  cannot  be  taken  advantage  of  for 
the  first  time  at  the  opening  of  the  trial. ^  '  While  a  grand  jury 
may  not  indict  upon  current  rumors  or  unverified  reports,  they 
may  act  upon  knowledge  acquired  either  from  their  own  obser- 
vation or  upon  the  evidence  of  witnesses  given  before  them.^ 
The  earlier  authorities  held  rather  broadly  that  it  is  proper  for 
the  trial  court  to  go  behind  the  indictment  and  inquire  into  the 
character  of  the  evidence  upon  which  the  grand  jury  acted.^°    But 
the  latter  authorities  seem  to  hold  that  the  power  should  be  exer- 
cised sparingly  and  only  for  the  purpose  of  preventing  a  clear 

6  United    States    v.    Heinze,    177  States  v.  BoUes,  209  Fed.  682;    hut 

Fed.  770;    United  States  v.  Rosen-  see   Radford   v.    United   States,    129 

thai,    121   Fed.  862;    United  States  Fed.  49,  63  C.  C.  A.  491  (2d  Cir.). 
V.   Edgerton,   80   Fed.   374 ;    United  *'  United     States     v.     McKinney, 

States  j;.  Rubin,  214  Fed.  507.  199  Fed.  25,  117  C.  C.  A.  403    (8th 

8  United    States  v.    Perlman,   247  Cir.) ;  6ui  see  Hillmant;.  United  States, 

Fed.   158;    United  States  v.  Rubin,  192  Fed.  264,  where  it  is  made  dis- 

218    Fed.    245 ;     United    States    v.  cretionary. 

Rubin,  214  Fed.  507 ;   United  States  » Hale  v.  Henkel,  201    U.  S.  43, 

V.  Rosenthal,  121  Fed.  862 ;    United  65,  66,  50  L.  ed.  652,  26  S.  C.  370. 
States   V.    Edgerton,    80    Fed.    374 ;  i"  United   States  v.  Farrington,  5 

United  States  v.  lulpatrick,  16  Fed.  Fed.    343 ;    United    States     v.    Ivil- 

765 ;    United  States  v.   Reed,   Fed.  patrick,    16    Fed.    765 ;    Royce     v. 

Cas.  No.  16134,  2  Blatch.  425.  Territory  of   Oklahoma,    5   Ok.   61, 


7  Cooper   V.    United.  States,    247      47  Pac.  1083. 
Fed.  45  (C.  C.  A.  4th  Cir.) ;  United 


133 


§  154]  INDICTMENTS  [Chap.  XV 

injustice.^^    But  the  court  may  order  an  inspection  of  the  minutes 
of  the  Grand  Jury.^^ 

§  155.  Returning  Indictment  into  Court. 

It  is  necessary  that  the  indictment  should  be  produced  pubhcly 
by  the  grand  jury.  That  is  the  evidence  required  by  law  to  prove 
that  it  is  sanctioned  by  the  accusing  body ;  and  until  it  is  so 
presented  by  the  grand  jury,  the  party  charged  by  it  is  not  in- 
dicted, nor  is  he  required  or  bound  to  answer  any  charge  against 
him  which  is  not  so  presented.^  But  it  is  not  mandatory  that  it 
be  presented  by  the  grand  jury  in  a  body.^  And  the  right  to 
move  to  quash  an  indictment  on  the  ground  that  the  foreman  of 
the  jury  delivered  the  indictment  to  the  Judge  in  the  absence  of 
the  other  grand  jurors,  is  waived  by  failure  to  raise  the  question 
after  the  term  in  which  the  indictment  was  returned.^ 

§  156.   Change  in  Indictment. 

When  the  indictment  of  the  grand  jury  is  filed  with  the  court 
no  change  can  be  made  in  the  body  of  the  instrument  by  order  of 
the  court,  or  by  the  prosecuting  attorney,  without  a  re-submission 
of  the  case  to  the  grand  jury.  The  fact  that  the  court  may  con- 
sider the  change  immaterial,  as  the  striking  out  of  surplus  words, 
makes  no  difference.  The  instrument,  as  thus  changed,  is  no 
longer  the  indictment  of  the  grand  jury  which  presented  it.  Upon 
an  indictment  so  changed  the  court  can  proceed  no  further. 
There  is  nothing  which  the  prisoner  can  "be  held  to  answer." 
A  trial  on  such  an  indictment  is  void.     There  is  nothing  to  try.^ 

"  McKinney    v.     United    States,  172  Fed.  646,  97  C.  C.  A.  172  (4th 

199  Fed.  25,  117  C.  C.  A.  577  (8th  Cir.). 

Cir.);    Holt   V.   United    States,    218  2  greese    v.     United    States,     226 

U.  S.  245,  45  L.  ed.  1021,  31  S.  C.  2.  U.  S.  1,  57  L.  ed.  97,  33  S.  C.  1. 

^"^  United   States  v.  Kilpatrick,  16  ^  Breese  v.  United  States,  supra. 

Fed.  765 ;   United  States  v.  Perlman,  §  156.   »  Ex   parte    Bain,    121   U. 

247  Fed.  158,  and  cases  cited.  S.  1,  30  L.  ed.  849,  7  S.  C.  781. 

§  155.   1  Renigar  v.  United  States, 


134 


CHAPTER  XVI 

INDICTMENTS  —  PART  II 

ESSENTIALS    AND    FUNDAMENTAL   PRINCIPLES    OF   AN    INDICTMENT 

§  157.  All  Federal  Crimes  Are  Statutory. 

§  158.  When  Court  May  Resort  to  Common  Law  Definitions. 

§  159.  No  Federal  Constructive  Offenses. 

§  160.  Indictment  Must  Bring  the  Defendant  within  the  Precise  Terms  of 

the  Statute. 

§  161.  Indictment  in  Separate  Counts. 

§  162.  Intent  Should  Be  Charged. 

§  163.  Time  and  Place. 

§  164.  Endorsements  on  Back  of  Indictment. 

§  165.  Indictments  for  Perjury. 

§  166.  Same ;   Subornation  of  Perjiu-y. 

§  167.  Perjm-y  before  Naval  Court-Martial. 

§168.  Duplicity. 

§  169.  Designation  of  Defendant. 

§  170.  Corporations. 

§  171.  General  Rule  Governing  Indictments  for  Conspiracy. 

§  172.  Setting  Forth  the  Language  of  Statute  —  When  Insufficient. 

§  173.  Rule  of  Pleading  When  Language  of  Statute  Has  No  Technical  Meaning. 

§  174.  Facts  and  Circumstances  Must  Be  Stated. 

§  175.  Ex  Post  Facto  Construction  of  New  Offenses. 

§  176.  Finding  More  than  One  Indictment  for  Same  Offense. 

§  177.  Motion  to  Quash  Wlaere  ]\Iore  than  One  Indictment  Is  Found  for 

Same  Offense. 

§  157.   All  Federal  Crimes  Are  Statutory. 

It  is  well  settled  that  there  are  no  common  law  offenses  against 
the  United  States.  The  Federal  Courts  cannot  resort  to  the 
common  law  as  a  source  of  criminal  jurisdiction ;  all  crimes  and 
offenses,  cognizable  under  the  authority  of  the  United  States,  are 
such,  and  only  such,  as  are  expressly  designated  by  law.  Before 
a  man  can  be  punished,  his  case  must  be  plainly   within   the 

135 


§  157]  INDICTMENTS  [Chap.  XVI 

statute.^  It  is  for  Congress  and  not  the  court  to  define  a  crime 
and  ordain  its  punishment.^  It  would  be  exceedingly  wrong  that 
a  man  should,  by  a  long  train  of  conclusions,  be  reasoned  into  a 
penalty  when  the  express  words  of  the  statute  do  not  authorize  it.' 

§  158.  When  Court  May  Resort  to  Common  Law  Definitions. 

The  Courts  of  the  United  States  have  no  jurisdiction  over 
offenses  not  made  punishable  by  the  Constitution,  laws  or  treaties 
of  the  United  States,  but  they  may  resort  to  the  common  law  for 
the  definition  of  terms  by  which  ofi'enses  are  designated.^  But 
no  statute  is  to  be  construed  as  altering  the  common  law  further 
than  its  words  import.  It  is  not  to  be  construed  as  making  any 
innovation  upon  the  common  law  which  it  does  not  fairly  express 
and  whenever  a  departure  from  common  law  rules  and  definitions 
is  claimed,  the  purpose  to  make  such  departure  should  be  clearly 
shown.^ 

§  159.  No  Federal  Constructive  Offenses. 

It  is  axiomatic  that  statutes  creating  and  defining  crimes  cannot 
be  extended  by  intendment,  and  that  no  act,  however  wrongful, 

§  157.    1  United  States  v.  George,  feld    &    Co.    v.    United    States,    197 

228  U.  S.  14,  57  L.  ed.   712,  33  S.  U.  S.  442,  49  L.  ed.  826,  25  S.  C. 

C.  412;    United  States  v.  Biggs,  211  456;    Burton  v.  United  States,  202 

U.  S.  507,  53  L.  ed.  305,  29  S.  C.  181 ;  U.  S.  344,  50  L.  ed.  1057,  26  S.  C. 

United  States  v.  Van  Wert,  195  Fed.  688.     Note:     For   the    definition   of 

974;     United    States    v.    Birdsdall,  the  particular  offenses  and  the  req- 

195    Fed.    980;     United    States    v.  uisites    of    the   indictments  and  in- 

Brewer,  139  U.  S.  278,  35  L.  ed.  190,  formations  under  them,  consult  the 

lis.  C.  538;  United  States  t;.  Eaton,  specific    section    governing    same    in 

144  U.  S.  677,  36  L.  ed.  591,  12  S.  C.  Penal  Code  and  editorial  notes  under 

764;    United  States  v.  Keitel,  211  U.  each  section. 

S.  370,  53  L.  ed.  2.30,  29  S.  C.  123 ;  '  Rex  v.  Bond,   1  B.  &  Aid.  392 ; 

Caha  V.  United  States,  152  U.  S.  211,  Snitkin  v.  United  States,  decided  by 

38  L.  ed.  415,  14  S.  C.  513;    United  U.   S.   Circuit  Court  of  Appeals  of 

States  V.  Britton,  108  U.  S.  199,  206,  7th  Circuit,  March  30,  1920. 
27  L.  ed.  698,    2  S.  C.  531 ;    In   re  §  158.   »  Pettibone       v.       United 

Greene,  52   Fed.  104,  111    (C.  C.  A.  States,  148  U.  S.  197,  203,  37  L.  ed. 

6th    Cir.);     Morrill    i;.    Jones,    106  419,    13  S.   C.   542;    Shaw  v.   Rail- 

U.  S.  423,  27  L.  cd.  267,  1  S.  C.  70 ;  road  Co.,  101  U.  S.  557,  25  L.  ed. 

Dwycr   v.    United   States,    170   Fed.  892. 
160,  95  C.  C.  A.  416  (9th  Cir.).  ^  Northern  Securities  Co.  i^.  United 

2  United   States  v.    Wiltberger,    5  States,  193  U.  S.  197,  48  L.  ed.  679, 

Wheat.  (U.  S.)  76,  5  L.  cd.  37  ;  Hack-  24  S.  C.  436. 
130 


Chap.  XVI]  INTENT   SHOULD    BE    CHARGED  [§   162 

can  be  punished  under  a  statute  unless  clearly  within  its  terms. 
There  can  be  no  constructive  offenses,  and,  before  a  man  can  be 
punished,  his  case  must  be  plainly  and  unmistakably  within  the 
statute.^ 

§  160.  Indictment  Must  Bring  the  Defendant  within  the 
Precise  Terms  of  the  Statute. 

Where  the  crime  is  a  statutory  one,  it  must  be  charged  with 
precision  and  certainty,  and  every  ingredient  of  which  it  is  com- 
posed must  be  clearly  and  accurately  set  forth ;  and  that  even  in 
the  cases  of  misdemeanors,  the  indictment  must  be  free  from  all 
ambiguity,  and  leave  no  doubt  in  the  minds  of  the  accused  and 
the  court  of  the  exact  offense  intended  to  be  charged.^ 

§  161.  Indictment  in  Separate  Counts. 

Each  count  in  an  indictment  is  in  fact  and  theory  a  separate 
indictment.^ 

§  162.  Intent  Should  Be  Charged. 

Intent  is,  in  a  certain  sense,  essential  to  the  commission  of 
any  crime,  particularly  where  the  act  must  be  knowingly  and 
wilfully  done.^     Intent  may  make  an  act  criminal  which  other- 

§  159.   1  Todd   V.    United   States,  States   v.   Simmons,   96   U.   S.   360, 

158  U.  S.  278,  282,  39  L.  ed.  982,  24  L.  ed.  819;    Pettibone  v.  United 

15    S.    C.    889 ;     United    States    v.  States,  148  U.  S.  197,  37  L.  ed.  419, 

Bathgate,  246  U.  S.  220,  62  L.  ed.  13  S.  C.  542 ;  Evans  v.  United  States, 

676,  38  S.  C.  269;    United  States  v.  153  U.  S.  584,  38  L.  ed.  830,  14  S. 

Lacher,  134  U.  S.  624,  33  L.  ed.  1080,  C.  934;    United  States  v.  Todd,  158 

10  S.  C.  625.  U.  S.  278,  282,  39  L.  ed.  982,   15 

§  160.   1  Evans,  v.  United  States,  S.  C.  889 ;   DemoUi  v.  United  States, 

153  U.  S.  584,  38  L.  ed.  830,  14  S.  144  Fed.  363,  75  C.  C.  A.  365  (8th 

C.  936 ;    Ledbetter  v.  United  States,  Cir.) ;    France  v.  United  States,  164 

170  U.  S.  606,  609,  610,  42  L.  ed.  U.  S.  676,  41  L.  ed.  595,  17  S.  C. 

1162,  18  S.  C.  774;  Martin  f.  United  219;     United    States    v.    Hess,    124 

States,   168  Fed.   198,  93  C.  C.  A.  U.  S.  483,  31  L.  ed.  516,  8  S.  C.  571 ; 

484    (8th    Cir.) ;     Peters    v.    United  United  States  v.  Mann,  95  U.  S.  580, 

States,  94  Fed.   127,   131,  36  C.  C.  24  L.  ed.  531. 

A.  105  (9th  Cir.) ;   Writ  of  Certiorari  §  161.    i  Selvester ;;.  United  States, 

denied  in  176  U.  S.  684,  44  L.  ed.  638,  170  U.  S.  262,  42  L.  ed.   1029,   18 

20   S.    C.    1026 ;     United   States   v.  S.  C.  580. 

Cruikshank,  92  U.  S.  542,   558,  23  §  162.    i  Armour    Packing   Co.    v. 

L.  ed.  588 ;    United  States  v.  Carll,  United  States,  209  U.  S.  56,  52  L.  ed. 

105  U.  S.  611,  26  L.  ed.  1135 ;  United  681,  28  S.  C.  428. 

137 


§  162]  INDICTMENTS  [Chap.  XVI 

wise  would  be  innocent,  as  if  it  is  a  step  in  a  plot.^  In  such 
cases  it  is  essential  to  charge  that  a  defendant  willfully  violated 
the  law.^  Thus,  for  instance,  under  Section  8  of  the  Food  and 
Drugs  Act  of  June  30,  1906,  for  shipping  misbranded  drugs 
in  interstate  commerce,  the  misbranding  must  be  done  either 
with  an  intent  to  deceive  or  in  reckless  disregard  of  truth  or 
falsity."^  It  is  however  unnecessary  to  allege  that  a  statutory 
felony  was  "  feloniously  "  committed.^  An  indictment  for  vio- 
lation of  the  Reed  Amendment  (Act  March  3,  1917)  was  held 
not  to  be  defective  merely  because  it  states  incorrectly  the 
point  from  which  the  transportation  of  the  liquor  started.^  And 
information,  as  against  a  motion  in  arrest  of  judgment, 
need  only  be  sufficiently  specific  to  fairly  inform  the  defen- 
dant of  the  crime  alleged,  and  to  support  a  plea  of  former  ac- 
quittal or  conviction  in  a  subsequent  prosecution  for  the  same 
offense.'^ 

§  163.   Time  and  Place. 

Good  pleading,  undoubtedly,  requires  an  allegation  that  the 
offense  was  committed  on  a  particular  day,  month  and  year ;  but 
it  does  not  necessarily  follow  that  the  omission  to  state  a  particular 
day  is  fatal  upon  a  motion  in  arrest  of  judgment.  Neither  is  it 
necessary  to  prove  that  the  offense  was  committed  upon  the  day 
alleged,  unless  a  particular  day  be  made  material  by  the  statute 
creating  the  offense.  Ordinarily,  proof  of  any  day  before  the 
finding  of  the  indictment,  and  within  the  statute  of  limitations, 
will  be  sufficient.^    The  exact  date  of  the  commission  of  offense 

^Badders  v.   United  States,   240  s  Malcolm  v.  United  States,   256 

U.  S.  391,  60  L.  ed.  706.  Fed.  363  (C.  C.  A.  4th  Cir.). 

» Potter    V.    United    States,    155  ^  M'Lean  Medicine  Co.  v.  United 

U.  S.  438,  39  L.  ed.  214,  15  S.  C.  144;  States,  253  Fed.  694  (C.  C.  A.  8th 

Felton   V.    United   States,    96   U.   S.  Cir.).     On   the    question  on  interest 

699,    24    L.    ed.  875 ;    Gallagher   v.  under  the  Espionage  Act  see  Bentall 

United  States,  144  Fed.  87,  75  C.  C.  v.    United    States,    262    Fed.     744 

A.  245  (1st  Cir.).  (C.  C.  A.  8th  Cir.). 

^  M'Lcan  Medicine  Co.  v.  United  §  163.   ^  Ledbetter       v.       United 

States,  253  Fed.  694  (C.  C.  A.  8th  States,  170  U.  S.  606,  42  L.  ed.  1162, 

Cir.).  18  S.  C.  774;    Matthews  v.  United 

6  Wood  V.  United  States,  204  Fed.  States,  161  U.  S.  500,  40  L.  ed.  786, 

65,  122  C.  C.  A.  369  (4th  Cir.).  16  S.  C.  640. 

138 


Chap.  XVI]  SUBORNATION   OP   PERJURY  [§  166 

is   not   essential.-    An    indictment   for   murder   failing   to   aver 
either  time  or  place  is  defective.^ 

§  164.   Indorsements  on  Back  of  Indictment. 

Entries  on  the  back,  margin  or  caption  of  an  indictment,  show- 
ing the  statute  under  which  the  indictment  is  drawn,  are  useful 
and  convenient  means  of  reference,  and  in  case  of  doubt  might 
possibly  be  of  some  assistance  in  determining  what  statute  was  al- 
leged to  have  been  violated.  But  these  entries  form  no  part  of  the 
indictment  and  neither  add  nor  detract  from  the  legal  effect  of  the 
charge.^  An  indictment  must  set  out  the  facts  and  not  the  law.^ 
And  the  foreman's  indorsement  "A  True  Bill  "  on  the  back  of  the 
indictment  is  not  essential,^  although  it  was  at  early  common  law.* 

§  165.   Indictments  for  Perjury. 

"  In  every  presentment  or  indictment  prosecuted  against  any 
person  for  perjury,  it  shall  be  sufficient  to  set  forth  the  substance 
of  the  offense  charged  upon  the  defendant,  and  by  what  court, 
and  before  whom  the  oath  was  taken,  averring  such  court  or 
person  to  have  competent  authority  to  administer  the  same,  to- 
gether with  the  proper  averment  to  falsify  the  matter  wherein  the 
perjury  is  assigned,  without  setting  forth  the  bill,  answer,  in- 
formation, indictment,  declaration,  or  any  part  of  any  record  or 
proceeding,  either  in  law  or  equity,  or  any  affidavit,  deposition,  or 
certificate,  other  than  as  hereinbefore  stated,  and  without  setting 
forth  the  commission  or  authority  of  the  court  or  person  before 
whom  the  perjury  was  committed."  ^ 

§  166.   Same ;  Subornation  of  Perjury. 

"  In  every  presentment  or  indictment  for  subornation  of  per- 
jury, it  shall  be  sufiicient  to  set  forth  the  substance  of  the  offense 
charged  upon  the  defendant,  without  setting  forth  the  bill, 
answer,    information,    indictment,    declaration,    or   any   part   of 

2  Brown  v.  Elliott,  225  U.  S.  392,  ^  United  States  v.  Nixon,  supra. 
56  L.  ed.  1136,  32  S.  C.  748.  a  prisbie    v.    United    States,    157 

3  Ball  V.  United  States,  140  U.  U.  S.  160,  39  L.  ed.  657,  15  S.  C. 
S.  118,  35  L.  ed.  377,  11  S.  C.  761.  586. 

§  164.   1  United  States  v.   Nixon,  *  Rex  v.  Ford,  Yelv.  99. 

235  U.  S.  231,  59  L.  ed.  207,  35  S.  C.  §  165.   i  Rev.   Stat.    §  5396.     For 

49 ;    Williams  v.  United  States,  168  annotations  see  Penal  Code,  perjury. 
U.  S.  382,  42  L.  ed.^509,  18  S.  C.  92. 

139 


§  166]  INDICTMENTS  [Chap.  XVI 

any  record  or  proceeding  either  in  law  or  equity,  or  any  affidavit, 
deposition,  or  certificate,  and  without  setting  forth  the  commission 
or  authority  of  the  court  or  person  before  whom  the  perjury  was 
committed,  or  was  agreed  or  promised  to  be  committed."  ^ 

§  167.  Perjury  before  Naval  Court-Martial. 

"  In  prosecutions  for  perjury,  committed  on  examination  before 
a  naval  general  court-martial,  or  for  the  subornation  thereof,  it 
shall  be  sufficient  to  set  forth  the  offense  charged  on  the  defendant, 
without  setting  forth  the  authority  by  which  the  court  was  held, 
or  the  particular  matters  brought  before,  or  intended  to  be  brought 
before,  said  court."  ^ 

§  168.   Duplicity. 

Two  offenses  cannot  be  joined  in  one  count.^  An  indictment 
charging  "  the  embezzlement,  as  well  as  the  wilful  misapplication 
of  the  'funds  and  credits'  of  a  national  bank;"  without  setting 
forth  any  particular  description  of  either  and  without  any  sepa- 
rate statements  as  to  the  amount  either  of  the  "  funds  "  or  the 
"  credits "  which  had  thus  been  embezzled  or  misapplied  is 
defective,  because  of  duplicity,  as  well  as  insufficient  description 
of  the  offense.2  The  question  of  duplicity  of  an  indictment  can 
only  be  raised  by  special  demurrer;  it  is  too  late  after  verdict.^ 
It  is  not  duplicitous  and  it  is  permissible  for  sake  of  brevity  to 
refer  one  count  of  an  indictment  to  another  for  facts  constituting 
the  scheme  or  plan,  provided  the  reference  is  certain  and  the 
defendant  cannot  be  misled  by  same.^  The  general  rule  is  that 
a  felony  and  a  misdemeanor,  both  the  result  of  the  same  trans- 
action, cannot  be  united  in  one  count. ^ 

§  166.    1  Rev.  Stat.  §  5397.  '  Connors   v.    United   States,    158 

§  167.   1  Rev.  Stat.  §  1023.  U.  S.  408,  39  L.  ed.  1033,  15  S.  C. 

§  168.    '  Blitz    V.    United    States,  951. 
153  U.  S.  308,  38  L.  ed.  725,  14  S.  C.  ■»  Blitz   v.   United  States,    153   U. 

924;    Ammcrrnan  v.   United  States,  S.  308,  38  L.  ed.  725,  14  S.  C.  924; 

210    Fed.    32G,    132    C.    C.    A.    464  United  States  v.  Peters,  87  Fed.  984, 

(8th  Cir.);    Price  v.  United  States,  b.  c.  94   Fed.  127,  30  C.  C.  A.  105 

218  Fed.  149  (C.  C.  A.  8th  Cir.).  (9th  Cir.).     Certiorari  denied  in  176 

2  Grand   Brewing   Co.    v.    United  U.  S.  684,  44  L.  ed.  638,  20  S.  C. 

States,   204  Fed.    17,    122  C.  C.  A.  1026. 

331,  206  Fed.  386;   Allison  v.  United  »  Commonwealth    v.     Thompson, 

States,  216  Fed.  329.  116  Mass.  348. 
140 


Chap.  XVI]  DUPLICITY  [§  172 

§  169.  Designation  of  Defendant. 

An  indictment  charging  a  defendant  whose  true  name  is  un- 
known to  the  grand  jurors,  with  a  fictitious  name,  as  "  John  Doe  ", 
is  void  for  insufficient  description.^  An  indictment  is  not  invaUd 
merely  because  of  a  misspelling  of  the  name  of  the  defendant, 
provided  it  comes  within  the  rule  of  idem  sonas? 

§  170.   Corporations. 

It  is  now  well  settled  that  corporations  may  be  indicted,  pros- 
ecuted and  tried  like  natural  persons.^  The  fact  that  a  statute 
prescribed  the  penalty  to  be  both  a  fine  and  imprisonment  will 
not  relieve  the  corporation  from  all  punishment,  and  a  fine  may 
be  assessed  against  it.^ 

§  171.   General  Rule  Governing  Indictments  for  Conspiracy.^ 
The  rule  is  inflexible  that  the  purpose  of  the  conspiracy  and  al- 
leged agreement  to  do  an  unlawful  thing  must  be  clearly  set  out  in 
the  indictment,  and  that  the  same  cannot  be  aided  by  averments 
of  what  preceded  or  what  was  done  in  pursuance  of  the  conspiracy.^ 

§  172.  Setting  Forth  the  Language  of  Statute  —  When  In- 
sufficient. 

In  an  indictment  upon  a  statute,  it  is  not  sufficient  to  set  forth  ^ 
the  offense  in  the  words  of  the  statute,  unless  those  words  of  them- 

§  169.   1  United    States    v.     Doe,  235  U.  S.  699,  59  L.  ed.  431,  35  S.  C. 

127  Fed.  982.  291 ;     Commonwealth    v.    Hunt,    4 

2  Faust  V.  United  States,   163  U.  Mete.    (Mass.)    Ill    (Labor    indict- 

S.  452,  41  L.  ed.  224,  16  S.  C.  1112.  ment).     Apjrroved  Pettibone  v.  United 

§  170.   1  United  States?).  Pacific  A.  States,  148  U.  S.  197,  214,  37  L.  ed. 

R.  &  Nav.  Co.,  228  U.  S.  87,  57  L.  ed.  419,  13  S.  C.  542,  also  a  labor  case. 

742,  33  S.  C.  443 ;    United  States  v.  Nelson    v.    United    States,    52    Fed. 

Union  Supply  Co.,  215  U.  S.  50,  54  646;     United    States    v.    Patterson, 

L.  ed.  87,  30  S.  C.  15 ;  New  York  Cen-  55   Fed.   605    (C.   C.   A.    1st   Cir.) ; 

tral  R.  R.  Co.  v.  United  States,  212  United     States    v.    Cruikshank,     92 

U.  S.  481,  53  L.  ed.  613,  29  S.  C.  304.  U.  S.  542,  558,  23  L.  ed.  588 ;  United 

2  United  States  v.   Union  Supply  States  v.  Hess,  124  U.  S.  483,  31  L. 

Co.,  215  U.  S.  50,  54  L.  ed.  87,  30  ed.  516,  8  S.  C.  571 ;    United  States 

S.  C.  15.  V.  Britton,  108  U.  S.  193,  27  L.  ed. 

§  171.   1  See     also     article     under  701,  2  S.  C.  52G ;    United  States  v. 

§  37  of  Penal  Code.  Reardon  &  Sons,  etc.,  191  Fed.  454 

2  United    States    v.    Watson,     17  (C.  C.  A.  1st  Cir.) ;     Blitz  v.  United 

Fed.  145 ;  United  States  v.  Reichert,  States,  153  U.  S.  308,  38  L.  ed.  725, 

32  Fed.  142 ;  Joplin-v.  United  States,  14  S.  C.  924. 

141 


§  172]  INDICTMENTS  [Chap.  XVI 

selves  fully,  directly  and  expressly,  without  any  uncertainty  or 
ambiguity,  set  forth  all  the  elements  necessary  to  constitute  the 
offense  intended  to  be  punished.^  An  indictment  in  the  language 
of  the  statute  claimed  to  be  violated  is  demurrable  where  the 
statute  is  open  to  two  constructions,  one  a  crime  and  the  other 
not.  There  must  be  a  further  allegation  showing  the  commission 
of  an  offense  denounced  by  the  statute^^ 

'      §  173.  Rule  of  Pleading  When  Language  of  Statute  Has  No 
Technical  Meanmg. 

Where  the  language  used  in  a  criminal  statute  has  no  settled 
technical  meaning,  it  is  indispensable  for  the  pleader  to  set  forth 
fully  and  clearly  the  facts  sought  to  be  charged  against  the  defend- 
ant in  order  that  the  defendant  may  be  informed  of  the  nature  of 
the  accusation  against  him,  and  that  the  court,  from  the  face  of 
the  indictment,  may  be  enabled  to  see  that  the  facts  therein  set 
forth  constitute  an   offense  intended  to  be  punished  by  such 

statute.^ 
V- 

§  174.  Facts  and  Circumstances  Must  Be  Stated. 

The  general  rule  in  reference  to  an  indictment  is  that  all  the 
material  facts  and  circumstances  embraced  in  the  definition  of 
the  offense  must  be  stated,  and  that,  if  any  essential  element  of 
the  crime  is  omitted,  such  omission  cannot  be  supplied  by  intend- 
ment or  implication.  The  charge  must  be  made  directly  and  not 
inferentially  or  by  w^ay  of  recital.^     It  is  an  elementary  principle 

§  172.   iJveck    V.    United    States,  CarU,  105  U.  S.  611,  26  L.  ed.  1135; 

172  U.  S.  434,  43  L.  ed.  505,  19  S.  C.  United  States  v.  Hess,  124  U.  S.  483, 

254;    United  States  v.  Carll,  105  U.  31  L.  ed.  516,  8  S.  C.  571 ;  Pettibone 

S.  611,  26L.  ed.  1135;  United  States  v.  United  States,  148  U.  S.  197,  37 

V.  Hess,  124  U.  S.  483,  31  L.  ed.  516,  L.  ed.   419,   13  S.   C.   542 ;    United 

8  S.  C.  571 ;   Evans  v.  United  States,  States  v.  Cruikshank,  92  U.  S.  542, 

153  U.  S.  584,  38  L.  ed.  830,  14  S.  C.  558,  23  L.  ed.  588. 

934 ;     Morris  v.   United  States,    161  §  174.    i  Fontana  v.  United  States, 

Fed.  672,  88  C.  C.  A.  532  (8th  Cir.) ;  262   Fed.  283    (C.   C.   A.  8th  Cir.) ; 

United  States  v.  Gooding,  12  Wheat.  Moore  v.  United  States,  160  U.  S.  268, 

460,  6  L.  ed.  693.  270,    40  L.   ed.   422,  16  S.   C.   294 ; 

2  United  States  v.   Metzdorf,  252  Kovoloff  v.  United  States,  202  Fed. 

Fed.  933.  C.  C.  A.  605  (7th  Cir.) ;    Pettibone 

§  173.    •  Batchelor       v.       United  v.  United  States,  148  U.  S.   197,  203, 

States,  1.56  U.  S.  426,  429,  39  L.  ed.  475,  120  37  L.  ed.  419,  13  S.  C.  542; 

478,  15  S.  C.  446;   United  States  v.  United  States  v.  Mann,  95  U.  S.  580, 

142 


Chap.  XVI]  RULES   OF   PLEADING  [§  175 

of  criminal  pleading  that  where  the  definition  of  an  offense,  whether 
at  common  law  or  by  statute,  includes  generic  terms,  it  is  not 
sufficient  that  the  indictment  shall  charge  the  offense  in  the  same 
generic  terms  as  in  the  definition,  but  it  must  state  the  species; 
it  must  descend  to  particulars.^  Thus,  for  instance,  it  was  held 
that  an  indictment  for  receiving  stolen  postal  stamps  from  the 
United  States  with  knowledge  that  they  were  stolen  must  recite 
the  number  and  denominations  of  the  stamps  and  the  names  of 
the  post  offices  from  which  the  stamps  were  stolen,  and  that  a 
variance  between  the  place  of  theft  set  forth  in  the  indictment  and 
the  one  proved  on  trial  is  fatal .^  When  one  is  indicted  for  a 
serious  offense,  the  presumption  is  that  he  is  innocent  thereof, 
and  consequently  that  he  is  ignorant  of  the  facts  on  which  the 
pleader  founds  his  charges.*  " 

§  175.   Ex  Post  Facto  Construction  of  New  Offenses. 

The  United  States  Circuit  Court  of  Appeals,  speaking  through 
Sanborn,  J.,  in  First  National  Bank  v.  United  States,^  denounces 
ex  post  facto  construction  of  new  penal  statutes  in  no  uncertain 
terms,  using  the  following  language :  "  The  statute  creates  and 
denounces  a  new  offense.  A  penal  statute  which  creates  a  new 
crime  and  prescribes  its  punishment  must  clearly  state  the  persons 
and  acts  denounced.  A  person  who,  or  an  act  which,  is  not  by 
the  expressed  terms  of  the  law  clearly  within  the  class  of  persons, 
or  within  the  class  of  acts,  it  denounces  will  not  sustain  a  con- 
viction thereunder.  One  ought  not  to  be  punished  for  a  new 
offense  unless  he  and  his  act  fall  plainly  within  the  class  of  persons 
or  the  class  of  acts  condemned  by  the  statute.  An  act  which  "is 
not  clearly  an  offense  by  the  expressed  will  of  the  legislative 

24    L.    ed.    531;     MiUer   v.    United  United    States,    202    Fed.    475,    120 

States,  133  Fed.  337,  66  C.  C.  A.  399  C.  C.  A.  605  (7th  Cir.) ;    Fontana  v. 

(8th  Cir.)  ;  Naftzger  v.  United  States,  United  States,  supra. 

200  Fed.  494,   118  C.  C.  A.  598  (8th  ^  Naftzger  v.   United  States,   200 

Cir.).  Fed.  494,  118  C.  C.  A.  598  (8th  Cir.). 

2  United     States    v.     Cruikshank,  ^  Fontana   v.   United   States,    262 

92  U.  S.  542,  23  L.  ed.  588 ;    Morris  Fed.  283  (C.  C.  A.  8th  Cir.) ;  Miller  v. 

V.    United     States,     161     Fed.    672,  United  States,  133  Fed.  337,  66  C.  C. 

88  C.  C.  A.  532  (8th  Cir.) ;   Keck  v.  A.  399  (8th  Cir.) . 

United  States,  172^  U.  S.  434,  43  L.  5  175.   i  206  Fed.  374,  124  C.  C. 

ed.  505,  19  S.   C.  254;    Kovoloff  v.  A.  356  (8th  Cir.). 

143 


§  175]  INDICTMENTS  [Chap.  XVI 

department  before  it  was  done  may  not  be  lawfully  or  justly 
made  so  by  construction  after  it  is  committed,  either  by  the 
interpolation  of  expressions  or  by  the  expunging  of  some  of  its 
words  by  the  judiciary.  Ex  post  facto  construction  is  as  vicious 
as  ex  post  facto  legislation.  To  determine  that  a  case  is  within 
the  intention  of  a  statute  its  language  must  authorize  us  to  say  so. 
It  would  be  dangerous  indeed  to  carry  the  principle  that  a  case 
which  is  within  the  reason  or  mischief  of  a  statute  is  within  its 
provisions  so  far  as  to  punish  a  crime  not  enumerated  in  the 
statute  because  it  is  of  equal  atrocity,  or  of  unkind  character, 
with  those  which  are  enumerated.  The  case  must  be  a  strong 
one,  indeed,  which  would  justify  a  court  in  departing  from  the 
plain  meaning  of  words  in  search  of  an  intention  which  the  words 
themselves  did  not  suggest."  ^  Congress  may,  however,  by 
statute,  declare  the  construction  of  previous  statutes,  so  as  to 
bind  courts  in  reference  to  subsequent  transactions  as  well  as  to 
past  transactions,  so  long  as  no  constitutional  right  is  violated.^ 
If  it  can  be  gathered  from  a  subsequent  statute  in  pari  materia 
what  meaning  the  legislature  attached  to  the  words  of  a  former 
statute,  they  will  amount  to  a  legislative  declaration  of  its  mean- 
ing ;  and  will  govern  the  construction  of  the  first  statute.^  The 
several  acts  of  Congress  dealing  with  the  same  subject  matter 
should  be  construed  not  only  as  expressing  the  intention  of  Con- 
gress at  the  dates  the  several  acts  were  passed,  but  the  later  acts 
should  also  be  regarded  as  legislative  interpretations  of  the  prior 
ones.^ 

§  176.  Finding  More  than  One  Indictment  for  Same  Offense. 

The  practice  of  finding  two  or  more  indictments  for  different 

degrees  of  the  same  offense  or  for  different  oflPenses  founded  on 

2  United     States     v.     Wiltbergcr,  *  United    States    v.    Freeman,    3 

18  U.  S.  (5  Wheat.)  76,  96,  5  L.  ed.  How.    (U.   S.)   556,   565,    11   L.   ed. 

37;     United   States  v.    Ninety-Nine  724. 

Diamonds,    139   Fed.    961,    964,    72  ^  Cope   v.   Cope,    supra;     United 

C.  C.  A.  9,  12  (8th  Cir.),  2  L.  R.  A.  States  v.  Freeman,  3  How.   (U.  S.) 

(n.  B.)  185,  and  cases  there  cited.  556,    11    L.   ed.    548;     Stockdale   v. 

» Stockdale  v.   Ins.   Co.,  20  Wall.  Atlantic    Ins.    Co.    of    New  Orleans, 

(U.  S.)  323,  331,  22  L.  ed.  348 ;  Cope  20  Wall.  (U.  S.)  323,  22  h.  ed.  348. 
V.  Cope,  137  U.  S.  688,  33  L.  ed.  1064, 
10  K.  C.  70S. 
144 


Chap.  XVI]  MULTIPLYING   INDICTMENTS  [§  177 

the  same  matter  has  been  disapproved.^  "  In  civil  cases,  says 
Drake,  J.,^  the  law  abhors  a  muHiplicify  of  suits;  it  is  yet  more 
watchful  in  criminal  cases  that  the  Crown  shall  not  oppress  the 
subject,  or  the  Government  the  citizen,  by  unreasonable  prose- 
cutions." And  in  the  IMcElroy  Case,^  the  Supreme  Court  of  the 
United  States  strongly  condemned  it  in  the  following  language : 
"  In  cases  of  felony,  the  multiplication  of  distinct  charges  has  been 
considered  so  objectionable  as  tending  to  confound  the  accused 
in  his  defense,  as  to  prejudice  him  as  to  his  challenges,  in  the 
matter  of  being  held  out  to  be  habitually  criminal,  and  the  dis- 
traction of  the  attention  of  the  jury,  or  otherwise,  that  it  is  the 
settled  rule  in  England,  and  in  many  of  our  states,  to  confine  the 
indictment  to  one  distinct  offense  or  restrict  the  evidence  to  one 
transaction.  ..."  Where  two  crimes  are  of  the  same  nature  and 
necessarily  so  connected  that  they  may,  and  when  both  are  com- 
mitted they  must,  constitute  but  one  legal  offense,  they  should  be 
included  in  one  charge.  Familiar  examples  of  these  are  assault 
and  battery,  and  burglary.^  An  assault  and  battery  is  really  but 
one  crime.  The  latter  includes  the  former.  They  must 
be  charged  as  one  offense.  So  in  burglary,  where  the  indict- 
ment charges  a  breaking  and  entry  with  an  intent  to  steal,  and 
an  actual  stealing  (which  is  the  common  form),  the  jury  may 
acquit  of  the  burglary,  and  convict  of  the  larceny,  but  cannot 
convict  of  the  burglary  and  larceny  as  two  distinct  offenses. 
The  latter  is  merged  in  the  former  and  they  constitute  but  one 
offense.^ 

§  177.  Motion  to  Quash  Where  More  than  One  Indictment  Is 
Found  for  Same  Offense. 

The  appropriate  remedy  is  by  a  motion  to  the  court  to  quash 
the  indictment,  or 'to  confine  the  prosecution  to  some  one  of  the 

§  176.   1  Chitty,  Crim.  Law,  316;  361,  375,  approved  in  Ex  parte  Lang, 

McElroy   v.   United  States,    164   U.  18  Wall.  (U.  S.)  163,  21  L.  ed.  872. 
S.  76,  41  L.  ed.  355,  17  S.  C.  31;  ^  i64  U.  S.  76,  41  L.  ed.  355,  17 

People  V.  Van  Home,  8  Barb.  158;  S.  C.  31. 

State  V.   Cooper,    1    Green    (N.   J.),  ^  1  Starkie  Crim.  PI.  (2d  ed.),  29. 

361,  375 ;    Commonwealth  v.  Tuck,  *  Rex    v.    Withal,    1    Leach,    88 ; 

20  Pick.  (Mass.)  356.  Commonwealth   v.    Tuck,    20    Pick. 

2  State  V.  Cooper,  1  Green  (N.  J.),  (Mass.)  356. 

VOL.  I  —  10  145 


§  177]  INDICTMENTS  [Chap.  XVI 

charges.^  Where  a  multiplicity  of  indictments  exists,  the  practice 
is  to  move  the  court  to  quash  such  indictments,  whenever  the 
orderly  procedure  or  the  interest  of  the  defendants  requires 
that  it  be  done.  Upon  such  a  motion,  the  court  may  quash  the 
whole  indictment  or  certain  counts  or  direct  the  Government  to 
elect  upon  which  indictment  it  will  proceed ;  or  direct  separate 
trials,  and  thereupon  a  conviction  or  an  acquittal  upon  the  first 
trial  will  be  a  bar  to  the  others,  if  in  fact  the  remaining  indict- 
ments are  for  the  same  cause  of  action  or  offense.  This  rule  is 
particularly  stringent  if  a  defendant  had  been  arraigned  and 
ordered  to  plead  .^ 

§  177.   1  Arch.  Crim.  PI.  3.  *  United  States  v.  Maloney,  Fed. 

Cas.  No.  15713. 


146 


CHAPTER   XVII 

INDICTMENTS  IN  SEVERAL  COUNTS  — PART  III 

JOINDER   OF  CHARGES 

§178.  The  Statute. 

§  179.  When  Consohdation  Improper. 

§  180.  Severance  and  Separate  Trial. 

§  181.  Copy  of  Indictment  and  List  of  Jurors  and  Witnesses  for  Prisoner. 

§  178.   The  Statute. 

*'  When  there  are  several  charges  against  any  person  for  the 
same  act  or  transaction,  or  for  two  or  more  acts  or  transactions 
connected  together,  or  for  two  or  more  acts  or  transactions  of 
the  same  class  of  crimes  or  offenses,  which  may  be  properly  joined, 
instead  of  having  several  indictments  the  whole  may  be  joined 
in  one  indictment  in  separate  counts ;  and  if  two  or  more  indict- 
ments are  found  in  such  cases,  the  court  may  order  them  to  be 
consolidated."  ^  This  statute  has  received  extensive  consider- 
ation in  the  Federal  Courts.  It  is  now  settled  that,  where  several 
separate  indictments  are  consolidated  by  order  of  court,  they 
thereby  become  separate  counts  in  a  single  indictment.^  When 
so  consolidated,  a  party  can  exercise  only  the  number  of  peremptory 
challenges  provided  by  law  for  a  trial  under  a  single  indictment.^ 
An  indictment  in  several  counts,  charging  different  acts  or  trans- 
actions of  the  same  class  of  crimes  may  be  joined  properly  in  one 

§  178.   1  Rev.  Stat.  §  1024.  Fed.  442,  78  C.  C.  A.  642  (8th  Cir.) ; 

2  McElroy  v.   United  States,    164  Kbaras  v.   United  States,    192   Fed. 

U.  S.  76,  41  L.  ed.  355,  17  S.  C.  31;  503,    113  C.    C.   A.   109   (8th  Cir.); 

Porter  v.  United  States,  91  Fed.  494,  Walsh  ;;.    United    States,    174    Fed. 

33  C.  C.  A.  652  (5th  Cir.) ;   Turners  615,    98   C.    C.    A.   461    (7th    Cir.) ; 

t'.  United  States,  66  Fed.  280,  13  C.  Ryan    v.    United    States,    216    Fed. 

C.  A.  436  (5th  Cir.).  13  (C.  C.  A.  7th  Cir.). 

'  KJraus    v.    United    States,     147 

147 


§  179]  INDICTMENTS   IN    SEVERAL   COUNTS  [Chap.  XVII 

indictment  without  embarrassing  the  defendant  or  confounding 
him  in  his  defense/  The  phrase  in  the  statute  "  which  may  be 
properly  joined  "  does  not  Hmit  the  joinder  to  merely  such  matters 
as  were  permitted  by  the  rules  of  common  law,  but  the  Court  is 
vested  with  discretion  to  refuse  or  to  permit  a  consolidation  of 
indictments  or  counts  where  it  would  be  injurious  or  oppressive 
to  the  interest  of  the  defendant.''  It  is  proper  to  consolidate 
when  the  different  counts  relate  to  the  same  transaction  and  are 
provable  by  the  same  evidence.^ 

§  179.   When  Consolidation  Impi"oper. 

But  counts  in  an  indictment  against  several  defendants,  for  of- 
fenses charged  to  have  been  committed  by  all  of  them  at  one  time, 
cannot  be  joined  with  another  and  distinct  offense  committed  by 
part  of  them  at  a  different  time.^  The  general  rule  is  that  counts 
for  several  felonies  requiring  the  same  punishment  and  mode  of  trial 
may  be  joined  in  the  same  indictment  subject  to  the  power  of  the 
court  to  compel  an  election ;  such  power  cannot  be  sustained 
where  the  parties  are  not  the  same  in  all  the  counts  or  indictments 
or  when  the  offenses  are  in  nowise  part  of  the  same  transaction 
and  must  depend  upon  evidence  of  a  different  state  of  facts  as  to 
each  or  some  of  them.^  Separate  counts  of  an  indictment,  which 
are  interdependent  and  are  provable  by  the  same  evidence,  may  be 
consolidated  even  though  the  evidence  introduced  in  support 
of  one   charge  may  well  serve  as  evidence  tending  to  support 

*  Ingraham  v.  United  States,  155  168  Fed.  30,  94  C.  C.  A.  124  (6th 

U.  S.  434,  38  L.  ed.  213,  14  S.  C.  410 ;  Cir.). 

Pointer  v.  United  States,  151  U.  S.  &  Dolan  v.  United  States,  133  Fed. 

396,  39  L.  ed.  208,   15  S.  C.   149;  440,  69  C.  C.  A.  274  (8th  Cir.). 

Motes  V.   United  States,    178  U.   S.  *  United    States    v.    Greene,    146 

458,  44  L.  ed.   1150,  20  S.  C.  993;  Fed.  781;    Dillard  v.  United  States, 

Williams  v.   United  States,    168   U.  141  Fed.  303,  72  C.  C.  A.  451  (9th 

S.  382,  42  L.  ed.  509,  18  S.  C.  92;  Cir.). 

Logan  V.   United  States,    144  U.  S.  §  179.   »  McElroy  v.  United  States, 

263,  296,  36  L.  ed.  429,  12  S.  C.  617 ;  164  U.  S.  76,  41  L.  ed.  355,  17  S.  C.  31. 

Ryan  v.  United  States,  216  Fed.  13,  ^  McElroy  v.   United  States,    164 

16,    132   C.   C.   A.   452    (7th   Cir;.)  U.  S.  76,  41  L.  ed.  355,  17  S.  C.  31; 

Allison  V.   United  States,   216   Fed.  Williams  v.   United  States,    168  U. 

329,   132  C.   C.  A.  473   (8th  Cir.);  S.  382,  42  L.  ed.  509,  18  S.  C.  92; 

Anderson    v.    Moyer,    Warden,    193  United  States  v.  Dietrich,  126  Fed. 

Fed.  449 ;  Hartman  v.  United  States,  664  (8th  Cir.). 

148 


Chap.  XVII]  SEVERANCE   AND   SEPARATE   TRIAL  [§  180 

the  other  charge  or  count.^  But  where  there  are  distinct  offenses 
which  are  punishable  differently  and  require  evidence  of  a  different 
character  to  base  a  conviction,  an  indictment  charging  the  viola- 
tion of  both  these  offenses  in  one  count  is  bad  for  duplicity.'* 
Accordingly,  it  has  been  held  that  two  indictments  against  several 
defendants  for  assault  with  intent  to  kill,  with  another  indictment 
against  only  part  of  them  for  arson  committed  on  the  same  day, 
and  with  another  indictment  against  all  of  them  for  arson  com- 
mitted two  weeks  later,  cannot  be  consolidated ;  ^  also  an  indict- 
ment under  Section  1  of  the  Sherman  Act  may  be  consolidated 
with  an  indictment  charging  a  conspiracy  to  violate  Section  13 
of  the  Penal  Law  if  the  issues  and  parties  are  the  same  and  they 
all  relate  to  the  same  transactions.^ 

§  180.   Severance  and  Separate  Trial. 

The  rule  is  that  it  is  within  the  discretion  of  the  trial  judge  to 
grant  the  defendants  separate  trials  and  an  exception  can  only 
be  taken  if  this  discretion  is  abused.^  Where  the  indictment 
shows  the  joint  participation  of  the  defendants  in  the  offense 
charged,  a  motion  for  separate  trials  will  be  denied.^  '  Directors^ 
elected  after  the  discontinuance  by  the  Attorney-General  of  an 
action  against  the  corporation  are  entitled  to  a  severance  in  another 

» Ryan  V.  United  States,  216  Fed.  §180.   i  Heike   v.    United   States, 

13,    132   C.    C.    A.    245    (7th   Cir.) ;  227  U.  S.  131,  57  L.  ed.  450,  33  S.  C. 

Williams  v.  United  States,  168  U.  S.  226 ;    United  States  v.  Ball,  163  U. 

382,  42  L.  ed.  509,  18  S.  C.  92;  Gund  S.  662,  672,  41  L.  ed.  300,  16  S.  C. 

Brewing    Co.   v.   United  States,   204  1192;     United    States    v.    Marchant 

Fed.   17;     Allison  v.  United  States,  and  Cokson,  12  Wheat.  (U.  S.)  481, 

216    Fed.    329,    132   C.    C.    A.    473  6  L.  ed.  700;    Lee  Dock  v.  United 

(8th  Cir.) ;    Olson  v.  United  States,  States,  224  Fed.  431,  140  C.  C.  A. 

133    Fed.    849;      Pointer    v.    United  125  (2d  Cir.) ;  Wood  y.  United  States, 

States,  151  U.  S.  396,  38  L.  ed.  208,  204  Fed.  55,  122  C.  C.  A.  369  (4th 

14  S.  C.  410;    Crain  v.  United  States,  Cir.) ;    Talbott  v.  United  States.  208 

162  U.  S.  625,  40  L.  ed.  1097,  16  S.  Fed.  144,  125  C.  C.  A.  360  (5th  Cir.) ; 

C.  952.  Richards  v.  United  States,  175  Fed. 

<Ammerman    v.    United     States,  911,    99   C.    C.    A.    401    (8th   Cir.); 

216  Fed.  326,  132  C.  C.  A.  470  (8th  Krause  v.   United  States,   147  Fed. 

Cir.).  442,  78  C.  C.  A.  642  (8th  Cir.). 

*  McElroy  v.  United   States,   164  ^  Belden    v.    United    States,    223 

U.  S.  76,  41  L.  ed.  355,  17  S.  C.  31.  Fed.   726,    139   C.   C.   A.   256    (9th 

« United  States  v.  Bopp,  237  Fed.  Cir.). 
283. 

149 


§  180]  INDICTMENTS   IN    SEVERAL   COUNTS  [Chap.  XVII 

prosecution  against  the  board  of  directors,^  but  if  in  the  course  of 
the  trial  it  should  affirmatively  appear  that  the  offense  committed 
was  several  and  not  joint  and  that  there  was  no  confederation 
or  conspiracy  between  the  defendants,  each  of  the  defendants  is 
entitled  to  be  discharged  begause  of  a  material  variance  between 
the  proof  and  the  indictment.'*  An  unlawful  joinder  is  prejudicial 
error.^  The  case  of  State  of  Missouri  v.  Daubert,^  cited  with 
approval  by  the  Supreme  Court  of  the  United  States,  in  the 
McElroy  case,^  showed  the  following  facts :  Henry  Daubert  and 
Louisa  Daubert  were  arraigned  on  an  indictment  in  the  St.  Louis 
Criminal  Court.  The  indictment  contained  two  counts.  The 
first  count  charged  the  defendants  jointly  with  larceny,  in  taking 
and  carrying  away  certain  goods,  the  property  of  one  Charles  E. 
Barney.  The  second  count  charged  the  defendants  with  receiving 
the  same  goods,  knowing  them  to  be  stolen.  When  the  case  was 
called  for  trial,  the  counsel  for  the  defendants  moved  the  court 
to  compel  the  attorney  prosecuting  for  the  State  to  elect  on  which 
count  he  would  proceed.  This  motion  was  by  the  court  overruled, 
and  the  defendants  excepted.  The  defendants  were  jointly  put 
upon  their  trial,  and,  after  all  the  testimony  was  delivered  to  the 
jury,  the  prosecuting  attorney  entered  a  nolle  prosequi  as  to  Henry 
Daubert  on  the  first  count,  and  as  to  Louisa  Daubert  on  the  second 
count.  The  counsel  for  the  defendants  then  moved  to  quash  the 
indictment,  but  the  motion  was  overruled.  The  cause  was  then 
submitted  to  the  jury,  and  they  failed  to  agree  on  a  verdict  in 
the  case  of  Louisa  Daubert,  but  found  Henry  guilty,  and  assessed 
his  punishment  at  two  years'  imprisonment  in  the  pentitentiary. 
In  deciding  the  case,  the  Supreme  Court  of  Missouri  said :  "  The 
proceeding  is  anomalous,  and  no  precedent  has  been  found  support- 
ing the  action  of  the  Criminal  Court.  As  a  general  rule,  where 
the  offenses  are  several,  distinct,  and  independent,  there  can  be 
no  joinder.  The  action  of  the  Circuit  attorney,  in  entering  of 
record  a  nolle  prosequi  against  Louisa  on  the  second  count,  and 
Henry  on  the  first  count,  changed  the  whole  scope,  tenor  and 

'United    States    v.     Rockefeller,  U.  S.  76,   41  L.  cd.  355,   17  S.  C. 

222  Fed.  534.  31. 

*  Johnson  v.  State,  44  Ala.  414 ;  •  42  Missouri,  242. 

McGhee  v.  State,  58  Ala.  3G0.  '164   U.   S.   79,   41    L.   ed.   355, 

5  McElroy  v.  United  States,   164  17  S.  C.  31. 
150 


Chap.  XVII]  SEVERANCE   AND    SEPARATE    TRIAL  [§  180 

meaning  of  the  indictment.  It  then,  in  effect,  amounted  to  an 
indictment  charging  two  several  offenses  against  distinct  defend- 
ants, who  had  no  necessary  connection  with  each  other.  The 
count  against  Louisa,  for  larceny,  was  a  substantive  charge ;  the 
count  against  Henry,  for  receiving  stolen  goods,  was  another 
distinct  charge  or  offense.  It  may,  with  entire  propriety,  be  said 
that  they  really  constituted  two  indictments,  requiring  different 
kinds  of  proof  and  separate  and  independent  verdicts.  Such  a 
course  of  procedure,  besides  being  wrong  in  itself,  is  calculated 
to  confuse  the  minds  of  the  jurors,  divert  their  attention  from  one 
issue  to  another,  and  prevent  the  observance  of  those  rules  which 
the  law  has  assiduously  built  up  for  the  protection  of  the  innocent. 
A  striking  illustration  of  the  dangerous  character  of  the  manner 
in  which  the  proceeding  was  conducted  is  manifested  in  the  present 
case,  where  the  jiu-y  failed  to  agree  as  to  whether  the  goods  were 
stolen,  and  yet  they  bring  in  a  verdict  of  guilty  against  Henry 
Daubert  for  receiving  the  very  identical  goods,  knowing  them  to  be 
stolen.  The  multiplying  of  issues  and  the  joinder  of  defendants 
in  criminal  cases  met  the  decided  disapprobation  of  this  court  in  a 
case  less  strong  than  the  one  at  bar.  ...  As  this  case  will  be 
remanded  for  another  trial,  or  further  proceedings,  we  deem  it 
only  necessary  to  glance  at  one  or  two  remaining  points.  The 
court  erred  palpably  in  admitting  testimony  of  different  acts  of 
larceny,  when  they  were  entirely  disconnected  with  the  offense 
charged  in  the  indictment  and  had  no  real  tendency  to  prove  the 
same.  Upon  the  trial  of  an  indictment  for  larceny,  evidence  of 
the  commission  of  a  separate  and  distinct  larceny  from  that 
charged  is  inadmissible.  (State  v.  Goetz,  34  Mo.  85.)  .  .  .  To 
admit  the  evidence,  there  must  be  a  connection  or  blending  which 
renders  it  necessary  that  the  whole  matter  should  be  disclosed, 
in  order  to  show  its  bearing  on  the  issue  before  the  court.  The 
error  in  admitting  the  evidence  was  not  cured  by  the  instruction 
of  the  court  in  withdrawing  and  excluding  it  from  the  consideration 
of  the  jury.  They  had  heard  it  detailed ;  it  had  poisoned  their 
minds,  and  its  effects  could  not  be  erased  from  their  memories. 
This  rule  is  so  well  established,  and  the  matter  has  been 
so  repeatedly  decided  by  this  court,  that  it  is  surprising  that  the 
courts  below  wiir  still  persist  in  the  practice.  .  .  ." 

151 


§  181]  INDICTMENTS  IN   SEVERAL   COUNTS  [Chap.  XVII 

§  181.   Copy  of  Indictment  and  List  of  Jurors  and  Witnesses 
for  Prisoner, 

"When  any  person  is  indicted  for  treason,  a  copy  of  the  indict- 
ment and  a  list  of  the  jm-y  and  of  the  witnesses  to  be  produced 
on  the  trial  for  proving  the  indictment,  stating  the  place  of  abode 
of  each  juror  and  witness,  shall  be  delivered  to  him  at  least  three 
entire  days  before  he  is  tried  for  the  same.  When  any  person  is 
indicted  of  any  other  capital  offense,  such  copy  of  the  indictment 
and  list  of  the  jurors  and  witnesses  shall  be  delivered  to  him  at 
least  two  entire  days  before  the  trial." ^  This  section  is  not  merely 
directory,  but  mandatory  to  the  government.^  And  it  is  error  to 
allow  a  witness  to  testify  whose  name  has  not  been  given  to  the 
defendant,  where  the  defendant  seasonably  asserted  his  right.^ 
There  is  no  general  obligation  on  the  part  of  the  prosecution  to 
furnish  the  accused  with  a  copy  of  the  indictment.  The  court 
would  no  doubt  have  power  to  order  a  copy  to  be  furnished  on  the 
request  of  the  accused,  and  at  the  government's  expense.^  If  a 
Federal  prisoner  is  not  indicted  for  a  capital  offense,  he  is  not 
entitled  as  of  right  to  a  list  of  jurors  or  witnesses.^  Nor  will  the 
Court,  in  advance  of  the  trial  of  a  case  not  capital,  require  the 
United  States'  Attorney  to  give  the  defendant  a  list  of  witnesses 
examined  by  the  grand  jury.^  The  United  States  Attorney  cannot 
be  required  to  give  the  accused  a  list  of  witnesses  examined  by  the 
grand  jury  finding  the  indictment.  In  a  conspiracy  case,  the 
court  making  this  ruling  intimated  that  it  ought  to  be  done, 
especially  in  such  a  case,  and  that  the  accused  should  also  have  a 
list  of  the  witnesses  the  prosecution  expects  to  call  on  the  trial. 
As  an  alternative,  the  court  said  that  when  the  case  came  to  be 

§181.    '  Rev.  Stat.  §1033.  888;    Hendrickson  v.  United  States, 

» Logan  j;.  United  States,  144  U.  249  Fed.  34,   161  C.  C.  A.  91   (4th 

S.  263,  36  L.  ed.  429,  12  S.  C.  617;  Cir.) ;    Jones  v.  United  States,   162 

Johnson  v.  United  States,  225  U.  S.  Fed.   417,  89  C.   C.   A.  303;    Writ 

40.5,  56  L.  ed.  1142,  .32  8.  C.  748.  of   Certiorari    denied    in    212    U.    S. 

•Hickory   v.   United   States,    151  576,  53  L.  ed.  657,  29  S.  C.  685; 

U.  S.  303,  38  L.  ed.  170,  14  S.   C.  Shelp  v.  United  States,  81  Fed.  694, 

334.  26  C.  C.  A.  570  (9th  Cir.) ;    United 

*  United    States    v.    Van    Duzec,  States  v.  Van  Duzee,  140  U.  S.  173, 

140  U.  S.  173,  35  L.  ed.  399,  11  S.  35  L.  ed.  399,  11  S.  C.  758. 
C.  7.58.  *  United  States  v.  Aviles,  222  Fed. 

»  United  States  v.  Pierce,  245  Fed.  474,  477. 
152 


Chap.  XVII]  LIST   OF   JURORS   AND   WITNESSES  [§  181 

set  down  for  trial,  and  the  trial  was  imminent,  if  the  defendant 
should  apply  for  a  continuance  on  the  ground  that  he  had  not 
had  an  opportunity  sufficiently  to  prepare  for  trial  because  he 
did  not  know  what  witnesses  the  prosecution  intended  to  produce, 
it  would  then  be  the  duty  of  the  court  to  exercise  his  discretion, 
and  continue  the  case,  or  require  a  list  of  the  witnesses  to  be  given, 
if  he  thought  the  facts  were  sufficient  to  justify  such  action/ 

» United  States  v.  Aviles,  222  Fed.  474. 


153 


CHAPTER  XVIII 
CONSTRUCTION  AND  REPEAL  OF  PENAL  STATUTES 

§  182.   Rule  of  Reasonable  Doubt. 

§  183.  Congressional  Debates  —  Committee  Reports  as  Aids  in  Interpreta- 
tion of  Statutes. 

§  184.   Construction  of  Earlier  and  Later  Statutes  on  Same  Subject. 

§  185.   Construction  and  Application  of  Two  Similar  Statutes. 

§  186.    Construction  of  a  General  Statute  with  Proviso. 

§  187.   Statutes  Creating  New  Offenses. 

§  188.   Offenses  against  the  United  States  and  the  State. 

§189.   Rules  of  Pleading. 

§  190.  Repeal  of  Statutes  without  a  Saving  Clause  —  Effect  on  Pending 
Cases. 

§  191.   Effect  of  an  Unconstitutional  Law. 

§  182.   Rule  of  Reasonable  Doubt. 

Criminal  statutes  must  be  construed  strictly ;  and  in  the  ev^ent 
of  doubt,  such  doubt  should  be  resolved  in  favor  of  the  accused. 
The  rule  of  reasonable  doubt  is  applicable  to  the  law  as  well  as 
to  the  facts  of  the  case.^    But  it  is  equally  well  settled  that  penal 

§  182.   »  Jophn  Mercantile  Co.  v.  Smith  v.  Townsend,  148  U.  S.  490, 

United  States,  236  U.  S.  531,  59  L.  37  L.  ed.  533,  13  S.  C.  634;  Johnson 

ed.   705,    35   S.    C.    291 ;     Bolles   v.  v.  Southern  Pacific  Co.,  196  U.  S.  1, 19, 

Outing  Co.  175  U.  S.,  262,  44  L.  ed.  41  L.  ed.  363,  25  S.  C.  158 ;   Rex  v. 

156,  20  S.  C.  94;    United  States  v.  Robinson,  2  Burr.  799,  803;    Helwig 

Morris,  14  Peters,  404,  10  L.  ed.  543 ;  v.    United    States,    188    U.    S.    605, 

Todd  V.   United  States,    158   U.   S.  47  L.  ed.  614,  23  S.  C.  427 ;   France 

278,  39  L.  ed.  982;    United  States  v.  United  States,  164  U.  S.  676,  41 

V.  Biggs,   157  Fed.  264,  affirmed  in  L.  ed.  595,   17  S.   C.  219;    United 

211  U.  S.  507,  53  L.  ed.  305,  29  S.  States  v.  Chase,  135  U.  S.  255,  261, 

C.  181 ;   United  States  V.  Wiltbergcr,  34     L.    ed.     117,    10    S.    C.    756; 

5  Wheat.   (U.  S.)  76,  5  L.  ed.  37 ;  United  States  v.  Steffens,  100  U.  S. 

Burton  v.  United  States,  202  U.  S.  82,  25  L.  ed.  550;    United  States  v. 

344,  50  L.  ed.  1057,  26  S.  C.  688;  Booker,  98  Fed.  291,  294;    Tiffany 

Keppel  V.  Tiffin  Savings  Bank,   197  v.    National    Bank   of    Missouri,    18 

U.  S.  356,  49  L.  ed.  790,  25  S.  C.  443 ;  Wall.  409,  21   L.   ed.   862 ;    United 
154 


Chap.  XVIII] 


RULE   OF  REASONABLE   DOUBT 


[§182 


laws  are  not  to  be,  construed  so  strictly  as  to  defeat  the  obvious 
intentions  of  the  Legislature.-  And  this  rule  specially  applies  when 
the  statute  is  enacted  for  the  public  good,  and  to  suppress  a 
public  wrong.'  All  laws  should  receive  a  sensible  construction. 
General  terms  should  be  so  limited  in  their  application  as  not  to 
lead  to  injustice,  oppression,  or  an  absurd  consequence.*  Doubt- 
ful words  in  a  penal  statute  should  not  be  extended  beyond  their 
natural  meaning  in  the  connection  with  which  they  are  used.^ 
And  while  a  penal  statute  is  to  be  construed  strictly  it  should  not 
be  so  narrowly  construed  as  to  defeat  the  very  purpose  of  its 
enactment.^  A  penal  law  cannot  be  construed  "  by  equity  ", 
so  as  to  extend  it  to  cases  not  within  the  correct  and  ordinary 
meaning  of  the  expressions  of  the  law.^  Mr.  Justice  Brown  stated 
the  rule  as  follows :  ^  "  The  statute,  then,  being  penal,  must  be 
construed  with  such  strictness  as  to  carefully  safeguard  the  rights 
of  the  defendant  and  at  the  same  time  preserve  the  obvious 
intention  of  the  legislature.  If  the  language  be  plain,  it  will  be 
construed  as  it  reads,  and  the  words  of  the  statute  given  their  full 
meaning ;    if  ambiguous,  the  court  will  lean  more  strongly  in 


States  V.  Sheldon,  2  Wheat.  (U.  S.) 
119,  4  L.  ed.  199;  United  States 
V.  Reese,  92  U.  S.  214,  23  L.  ed.  563 ; 
United  States  v.  Clayton,  2  Dill. 
(U.  S.)  219;  United  States  v.  Com- 
merford,  25  Fed.  902 ;  United  States 
V.  WUUams,  3  Fed.  484,  491. 

^  United  States  v.  Lacher,  134 
U.  S.  624,  628,  33  L.  ed.  1080,  10 
S.  C.  625 ;  United  States  v.  Corbett, 
215  U.  S.  233,  242,  54  L.  ed.  173, 
30  S.  C.  81 ;  United  States  v.  Union 
Supply  Co.,  215  U.  S.  50,  55,  54  L. 
ed.  87,  30  S.  C.  15. 

3  Taylor  v.  United  States,  3  How. 
(U.  S.)  197,  210, 11  L.  ed.  559 ;  United 
States  V.  Stowell,  133  U.  S.  1,  12, 
33  L.  ed.  555,  10  S.  C.  244 ;  Johnson 
V.  Southern  Pacific  Co.,  196  U.  S.  1, 
16,  49  L.  ed.  363,  25  S.  C.  158. 

^  United  States  v.  Kirby,  7  Wall. 
(U.  S.)  482,  19  L.  ed.  278. 

5  United  States  v.  Stone,  188  Fed. 
386. 


'  United  States  v.  Ash  Sheep 
Co.,  250  Fed.  592  (C.  C.  A.  9th  Cir.) ; 
Johnson  v.  Southern  Pacific  Co., 
196  U.  S.  1,  18,  49  L.  ed.  363,  25 
S.  C.  158;  United  States  v.  Lacher, 
134  U.  S.  624,  33  L.  ed.  1080,  10  S. 
C.  625 ;  United  States  v.  Kambetz, 
256  Fed.  25 ;  Williamson  v.  United 
States,  207  U.  S.  425,  52  L.  ed.  278, 
28  S.  C.  163;  United  States  v. 
Schherholz,  137  Fed.  616;  Hamilton 
t;.  United  States,  26  D.  C.  382. 

^  United  States  v.  Sheldon,  2 
Wheat.  (U,  S.)  119,  4  L.  ed.  199. 

8  BoUes  V.  Outing  Co.,  175  U.  S. 
262,  44  L.  ed.  156,  ciiing  United 
States  V.  HartweU,  6  Wall.  (U.  S.) 
385,  18  L.  ed.  830;  United  States 
V.  Wiltberger,  5  Wheat.  (U.  S.)  76, 
95,  5  L.  ed.  37,  42 ;  American  Fur  Co. 
V.  United  States,  2  Pet.  (U.  S.)  358, 
7  L.  ed.  450 ;  United  States  v.  Reese, 
92  U.  S.  214,  23  L.  ed.  563. 

155 


§  182]  CONSTRUCTION   OF   PENAL   STATUTES      [Chap.  XVIII 

favor  of  the  defendant  than  it  would  if  the  statute  were  remedial. 
In  both  cases  it  will  endeavor  to  effect  substantial  justice,"  Chief 
Justice  Marshall  commented  on  the  rule  of  strict  construction  in 
criminal  cases  as  follows :  ^  "  The  rule  that  penal  laws  are  to  be 
construed  strictly,  is  perhaps  not  much  less  old  than  construction 
itself.  It  is  founded  on  the  tenderness  of  the  law  for  the  rights  of 
individuals ;  and  on  the  plain  principle  that  the  power  of  punish- 
ment is  vested  in  the  legislative,  not  in  the  judicial  department. 
It  is  the  legislature,  not  the  court,  which  is  to  define  a  crime, 
and  ordain  its  punishment.  .  .  .  The  maxim  is  not  to  be  so 
applied  as  to  narrow  the  words  of  the  statute  to  the  exclusion  of 
cases  which  those  words,  in  their  ordinary  acceptation,  or  in  that 
sense  in  which  the  legislature  has  obviously  used  them,  would 
comprehend.  The  intention  of  the  legislature  is  to  be  collected 
from  the  words  they  employ.  Where  there  is  no  ambiguity  in 
the  words  there  is  no  room  for  construction.  The  case  must  be  a 
strong  one  indeed,  which  would  justify  a  court  in  departing  from 
the  plain  meaning  of  words  especially  in  a  penal  act,  in  search  of  an 
intention  which  the  words  themselves  did  not  suggest.  To  deter- 
mine that  a  case  is  within  the  intention  of  the  statute,  its  language 
must  authorize  us  to  say  so.  It  would  be  dangerous,  indeed,  to 
carry  the  principle  that  a  case  within  the  reason  or  mischief  of  a 
statute,  is  within  its  provisions,  so  far  as  to  punish  a  crime  not 
enumerated  in  the  statute,  because  it  is  of  equal  atrocity,  or  of 
kindred  character,  with  those  which  are  enumerated." 

§  183.  Congressional  Debates  —  Committee  Reports  as  Aids 
in  Interpretation  of  Statutes. 

Reports  to  Congress  accompanying  the  introduction  of  pro- 
posed laws  may  aid  the  courts  in  reaching  the  true  meaning  of  the 
legislature  in  cases  of  doubtful  interpretation.^  The  Supreme 
Court  of  the  United  States  has  held  repeatedly  that  debates  of 
Congressional  Committees  are  unreliable  to  discover  the  source 

'United    States  v.   Wiltbcrger,   5  42,  39  L.  ed.  601,  613,  15  S.  C.  508; 

Wheat.  (U.  S.)  76,  5  L.  ed.  37.  Chesapeake    &    P.    Teleph.     Co.    v. 

§  183.   1  Blake    v.    National    City  Manning,  18G   U.  S.  238,  246,  46  L. 

Bank,   23   Wall.     (U.    S.)    307,   319,  ed.  1144,  1147,  22  S.  C.  881;   Binns 

23  L.  ed.  119,  120;   Bate  Rcfrigcrat-  v.  United  States,  194  U.  S.  486,  495, 

ing  Co.  V.  Sulzberger,  157   U.  S.  1,  48  L.  ed.  1087,  1090,  24  S.  C.  816. 

156 


Chap.  XVIII]  earlier  and  later  statutes  [§  184 

of  the  meaning  of  the  Umguage  employed  in  an  act  of  Congress.^ 
And  the  Court  is  not  disposed  to  go  beyond  the  reports  of  Con- 
gressional Committees.^  It  is  elementary  that  the  meaning  of  a 
statute  must,  in  the  first  instance,  be  sought  in  the  language  in 
which  the  act  is  framed,  and  if  that  is  plain,  and  if  the  law  is 
within  the  constitutional  authority  of  the  law  making  body  which 
passed  it,  the  sole  function  of  the  courts  is  to  enforce  it  according 
to  its  terms.^  Where  the  language  is  plain  and  admits  of  but  one 
meaning,  the  duty  of  interpretation  does  not  arise,  and  the  rules 
which  are  to  aid  doubtful  meanings  need  no  discussion.'^ 

§  184.  Construction  of  Earlier  and  Later  Statutes  on  Same 
Subject. 

"  Where  there  are  two  statutes,  the  earlier  special  and  the 
later  general  —  the  terms  of  the  general  broad  enough  to  include 
the  matter  provided  for  in  the  special  —  the  fact  that  the  one  is 
special  and  the  other  is  general  creates  a  presumption  that  the 
special  is  to  be  considered  as  remaining  an  exception  to  the 
general,  unless  a  repeal  is  expressly  named,  or  unless  the  provisions 
of  the  general  are  manifestly  inconsistent  with  those  of  the  special." 

2  Lapina  v.  WiUiams,   232    U.   S.  U.  S.  245,  258,  58  L.  ed.  1298,  1303, 

78,  58  L.  ed.  515,  34  S.  C.  196 ;  United  34  S.  C.  845. 

States  V.   Trans-Mo.    Freight   Ass'n,  ^  Hamilton    v.   Rathbone,    175  U. 

166  U.  S.  290,  41  L.  ed.  1007,  17  S.  S.  414,  421,  44  L.  ed.  219,  222,  20 

C.  540.  S.  C.  155;   Swarts  v.  Siegel,  117  Fed. 

5  Lapina  v.  Williams,  supra;   Binns  13,  54  C.  C.  A.  399  (8th  Cir.) ;   State 

I'.  United  States,  194   U.  S.  486,  48  v.  Duggan,  15  R.  I.  403,  6  Atl.  787; 

L.  ed.  1087,  24  S.  0.  816;    Johnson  United  States  v.    Hartwell,   6  Wall, 

i;.  Southern   Pacific   Co.,    196    U.    S.  (U.  S.)  385,  396,  18  L.  ed.  830,  832; 

1,  49  L.  ed.  363,  25  S.  C.  158 ;  Church  Lake  County  v.   Rollins,    130  U.  S. 

of    Holy    Trinity    v.    United    States,  662,  670,  671,  32  L.  ed.  1060,  1063, 

143  U.  S.  457,  463,  36   L.  ed.  226,  1064,  9  S.  C.  651 ;    Yerke  v.  United 

12  S.  C.  511.  States,  173  U.  S.  439,  442,  43  L.  ed. 

*Lake    County    v.    RoUins,     130  760,  761,  19  S.  C.  441,  20  S.  C.  155; 

U.  S.  662,  670,  671,  32  L.  ed.  1060,  Webber  v.  St.  Paul  City  R.  Co.,  97 

1063,  1064,  9  S.  C.  651 ;    Bate  Re-  Fed.  140,  38  C.  C.  A.  79 ;    Johnson 

frigerating    Co.    v.    Sulzberger,    157  v.   Southern    Pacific    Co.,    117    Fed. 

U.  S.  1,  33,  39  L.  ed.  601,  610,  15  462,   54   C.   C.   A.   508    (8th   Cir.) ; 

S.  C.  508 ;  United  States  v.  Lexington  United   States   v.    Fisher,    2   Cranch 

Mill  &  Elevator  Co.,  232  U.  S.  399,  (U.  S.),  358,  399,  2  L.  ed.  304,  318; 

409,  58  L.  ed.  658,  661,  L.  R.  A.  United  States  r.  WUtberger,  5  Wheat. 

1915B,  774,  34  S.  C.  337 ;      United  (U.  S.)  76,  96,  5  L.  ed.  37,  42. 
States  V.  First  National  Bank,  234 

157 


§  184]  CONSTRUCTION    OF   PENAL    STATUTES       [Chap.  XVIII 

Per  Justice  Brown,  in  Rodgers  v.  United  States/  citing  Ex  parte 
Crow  Dog,^  where  the  court  said :  "  The  rule  is,  generalia  specialibus 
no  derogant.  '  The  general  principle  to  be  applied/  said  Bovill, 
C.  J.  in  Thorpe  v.  Adams,  L.  R.  6  C.  P.  135,  '  to  the  construction 
of  acts  of  Parliament  is  that  a  general  act  is  not  to  be  construed 
to  repeal  a  previous  particular  act,  unless  there  is  some  express 
reference  to  the  previous  legislation  on  the  subject,  or  unless  there 
is  a  necessary  inconsistency  in  the  two  acts  standing  together.* 
'And  the  reason  is,'  said  Wood,  V.  C.  in  Firtgerald  v.  Champneys, 

2  Johns.  &  H.  54,  30  L.  J.  Ch.  782,  '  that  the  Legislature,  having 
had  its  attention  directed  to  a  special  subject,  and  having  ob- 
served all  the  circumstances  of  the  case  and  provided  for  them, 
does  not  intend  by  a  general  enactment  afterwards  to  derogate 
from  its  own  act  when  it  makes  no  special  mention  of  its  inten- 
tion so  to  do.'  " 

§  185.   Construction  and  Application  of  Two  Similar  Statutes. 

Where  the  language  of  two  statutes  relating  to  kindred  subjects 
and  having  similar  objects  is  not  alike,  and  the  state  of  facts  to 
which  they  apply  is  different,  each  must  be  construed  according 
to  its  own  terms.^  Where  two  statutes  cover  in  whole,  or  in 
part,  the  same  subject,  and  are  not  wholly  irreconcilable,  and  no 
intent  to  repeal  the  earlier  is  clearly  expressed  or  indicated  by  the 
latter,  they  must  stand  together  and  effect  must  be  given  to  each. 
The  earlier  is  not  repealed  by  the  later  .^ 

§  186.   Construction  of  a  General  Statute  with  Proviso. 
Where  there  is  in  the  same  statute  a  particular  enactment,  and 
also  a  general  one,  which  in  its  most  comprehensive  sense  would 

§  184.   1  185  U.  S.  83,  46  L.  ed.  §  185.   i  Warner  v.  Boyer,  74  Fed. 

816,  22  S.  C.  582 ;   Stoneberg,  et  al.  873. 

V.   Morgan,    Warden,   246   Fed.   98,  ^  prost  v.  Wenie,   157  U.  S.   46, 

—  C.  C.  A.  —  (8th  Cir.) ;   Ex  parte  58,  39  L.  ed.  614, 15  S.  C.  532 ;  United 

United  States,  226  U.  S.  420,  57  L.  States  v.  Healey,  160  U.  S.  136,  147, 

ed.  281,  33  S.  C.  170.  40  L.  ed.  369,  16  S.  C.  247;    Board 

» 109  U.  S.  556,  27   L.  ed.  1030,  of  Commissioners  v.  Mtna  Life  Ins. 

3  S.  C.  396.  And  see  also  Snitkin  v.  Co.,  90  Fed.  222,  227,  32  C.  C.  A. 
United  States  (C.  C.  A.  7th  Cir.)  585,  590  (8th  Cir.);  City  Realty 
decided  March  30,  1920,  fully  sus-  Co.  v.  Robinson  Contracting  Co., 
taining  doctrine  announced  in  text.  183  Fed.  176,  181. 

158 


Chap.  XVIII]  rules  of  pleading  [§  189 

include  what  is  embraced  in  the  former,  the  particular  enactment 
must  be  operative  and  the  general  enactment  must  be  taken  to 
affect  only  such  cases  within  its  general  language  as  are  not  within 
the  provisions  of  the  particular  enactment.^ 

§  187.   Statutes  Creating  New  Offenses. 

When  a  statute  creates  a  new  offense  by  prohibiting  and  making 
unlawful  anything  which  was  lawful  before,  and  appoints  a 
specific  remedy  against  such  new  offenses,  not  unlawful  previously, 
by  a  particular  sanction  and  particular  method  of  proceeding,  that 
particular  method  must  be  pursued  and  no  other.^  When  a  statute 
creates  a  new  offense  and  fixes  the  penalty  or  provides  a  specific 
punishment,  only  that  punishment  can  be  inflicted  which  the 
statute  prescribes.^ 

§  188.  Offenses  against  the  United.  States  and  the  State. 
Acts  in  violation  of  both  State  and  national  Penal  Codes  may  be 
prosecuted  in  either  of  these  courts.^ 

§  189.  Rules  of  Pleading. 

In  the  interest  of  orderly  procedure  and  for  the  full  protection 
of  the  defendant's  rights,  an  indictment  must  sufficiently  set 
forth  a  definite  crime  under  penalty  of  being  declared  invalid  if 
an  essential  element  be  lacking.^ 

§  186.   1  United  States  v.   Chase,  5  Wheat.  (U.  S.)  1,  5  L.  ed.  19;  Fox 

135  U.  S.  255,  34  L.  ed.  117,  10  S.  v.  Ohio,  5  How.  (U.  S.)  410,  12  L. 

C.  756.  ed.  213 ;    United  States  v.  Marigold, 

§  187.   1  Rex  V.  Robinson,  2  Burr.  9  How.  (U.  S.)  560,  13  L.  ed.  257 ; 

799,803.     Snitkin  y.  United  States  (C.  United  States  v.  Arjona,    120  U.  S. 

C.  A.  7th Cir.).  Decided  Mar.  30, 1920.  479,  30  L.  ed.  728,  7  S.  C.  628;  Cross 

"  In   re    Food   Conservation   Act,  i;.  North  Carolina,  132  U.  S.  131,  33 

254   Fed.    893,    902 ;     Farmers'    and  L.  ed.  287,  10  S.  C.  47. 
Mechanics'  National  Bank  v.  Bearing,  §  189.   ^  Ulmer  v.   United  States, 

91  U.  S.  29,  23  L.  ed.  196 ;  McBroom  219   Fed.    641,    134   C.    C.    A.    127 

V.    Scottish    Mortgage    &    Land    In-  (6th  Cir.) ;   Daniels  v.  United  States, 

vestment   Co.,  153   U.   S.   318,  325,  196  Fed.  459,  465,  116  C.  C.  A.  233 

38  L.  ed.  729,  14  S.  C.  852 ;    Gates  (6th  Cir.) ;    United  States  v.  Cruik- 

V.   National   Bank,    100   U.   S.   239,  shank,  92  U.  S.  542,  23  L.  ed.  588; 

25  L.  ed.  580.  Bennett  v.  United  States,  194  Fed. 

§  188.   1  Morris  v.  United  States,  630,   114   C.   C.  A.   402   (6th  Cir.)  ; 

229   Fed.    516,    143    C.   C.   A.   584  United  States  r.  Biggs,  211  U.  S.  507, 

(8th  Cir.),  citing  Houston  v.  Moore,  53  L.  ed.  305,  29  S.  C.  181, 

159 


§  190]  CONSTRUCTION    OF   PENAL   STATUTES       [Chap.  XVIII 

§  190.  Repeal  of  Statutes  without  a  Saving  Clause  —  Effect  on 
Pending  Cases. 

The  repeal  of  the  law  imposing  the  penalty  is  of  itself  a  re- 
mission of  same.^  There  can  be  no  legal  connection  nor  any  valid 
judgment  pronounced  upon  conviction  unless  the  law  creating  the 
offense  be  in  existence  at  the  time.^  When,  during  the  pendency 
of  an  action  in  an  appellate  court  for  a  penalty,  civil  or  criminal, 
the  statute  prescribing  the  penalty  is  repealed  without  any  saving 
clause,  the  appellate  court  must  dispose  of  the  case  under  the  law 
in  force  when  its  decision  is  given  even  though  to  do  so  requires 
the  reversal  of  a  judgment  which  was  right  when  rendered.^ 
If  pending  the  appeal  of  a  criminal  case,  the  penal  statute,  which 
the  defendant  is  charged  with  violating,  is  repealed  without  a 
saving  clause,  it  will  prevent  affirmance  of  conviction  by  the  higher 
court.  The  higher  court  will  be  obliged  to  reverse  the  judgment 
and  the  prosecution  will  be  dismissed.  Of  course,  the  effect  of 
repeal  upon  incomplete  proceedings  may  be  avoided  by  a  saving 
clause  inserted  in  the  repeal  statute.^  The  general  rule  has  always 
been  that  the  repeal  of  a  statute  imposing  a  penalty  will  prevent 
further  prosecution  for  any  violation  of  that  statute,  unless  the  con- 
trary is  provided  in  the  repealing  statute.  Chief  Justice  Marshall, 
in  the  leading  case  of  Yeaton  v.  United  States,^  said,  "  If  no  sentence 
has  been  pronounced,  it  has  been  long  settled,  on  general  principles, 
that  after  the  expiration  or  repeal  of  a  law,  no  penalty  can  be  en- 
forced, nor  punishment  inflicted,  for  violations  of  the  law  committed 
while  it  was  in  force,  unless  some  special  provision  be  made  for 
that  purpose  by  statute."  ^    There  is,  however,  a  general  saving 

§  190.   1  United  States  v.   Tynen,  v.  United  States,  6  Cranch    (U.  S.), 

11  Wall.  (U.  S.)  88,  20  L.  ed.  153;  329,  3  L.  ed.  239;  Vance  v.  Rankin, 

Moore  v.  United  States,  85  Fed.  465,  194  111.  625 ;  Pacific  Mail  S.  S.  Co.  v. 

29  C.  C.  A.  269  (8th  Cir.) ;    Mary-  Joliffe,  2  Wall.  (U.  S.)  450,  17  L.  ed. 

land  V.  B.  &  Ohio  R.  R.  Co.,  3  How.  805. 
(U.  S.)  534,  11  L.  ed.  714.  *  Vance  v.  Rankin,   194  111.  625; 

» United     States    v.     Tynen,     11  Gulf.  Col.  &  S.  F.  Ry.  t;.  Dennis,  224 

Wallace  (U.  S.),  88,  20  L.  ed.  153.  U.  S.  503,  56  L.  ed.  860,  32  S.  C.  542 ; 

•  United  States  v.  Peggy,  1  Cranch  Keller  v.   The  State,    12   Maryland, 

(U.  S.),  103,  110,  2  L.  ed.  49;   Gulf.  322;  State  v.  Daley,  29  Conn.  272. 
Col.  &  S.  F.  Ry.  V.  Dennis,  224  U.  S.  <*  State  v.  Colcy,  114  N.  C.  879. 

503,  506,  .56  L.  ed.  860,  32  S.  C.  542;  •  Yeaton     v.     United     States,     5 

Yeaton  v.  United  States,   5  Cranch  Cranch  (U.  S.),  281,  3  L.  ed.  101. 
(U.  S.),  281,3  L.ed.  101;  The  Rachel  ^  The  Irresistible,   7    Wheat.    (U. 

160 


Chap.  XVIII]       EFFECT   OF    AN   UNCONSTITUTIONAL   LAW 


[§191 


statute.^  Section  13  Revised  Statute,  1871,^  provides  as  follows: 
"  The  repeal  of  any  statute  shall  not  have  the  effect  to  release  or 
extinguish  any  penalty,  forfeiture  or  liability,  incurred  under  such 
statute  unless  repealing  act  shall  expressly  so  provide,  and  such 
statute  shall  be  treated  as  still  remaining  in  force  for  the  purpose 
of  sustaining  any  proper  action  or  prosecution  for  the  enforce- 
ment of  such  penalty,  forfeiture  or  liability."  ^° 


§  191.   Effect  of  an  Unconstitutional  Law. 

An  unconstitutional  law  is  void,  and  is  as  no  law.  The  offense 
created  by  it  is  not  a  crime.  A  conviction  under  it  is  not  merely 
erroneous,  but  is  illegal  and  void,  and  cannot  be  a  legal  cause  of 
imprisonment.^  When  a  statute  is  adjudged  to  be  unconstitu- 
tional, it  is  as  if  it  had  never  been.  Rights  cannot  be  built  up 
under  it;  it  constitutes  a  protection  to  no  one  who  has  acted 
under  it.  An  unconstitutional  statute  is  to  be  regarded  as  having 
at  no  time  been  possessed  of  any  legal  force.^ 


S.)  551,  5  L.  ed.  520;  Dyer  v.  ElUng- 
ton,  126  N.  C.  941;  United  States 
i;.  Schooner  Peggy,  1  Cranch  (U. 
S.),  103,  2  L.  ed.  49;  Bank  v.  State, 
12  Ga.  475. 

*  United  States  v.  Reisinger,  128 
U.  S.  398,  32  L.  ed.  480,  9  S.  C.  99. 

»Act  Feb.  25th,  1871,  c.  71,  16 
Stat.  432,  U.  S.  Compiled  Stat.  1901, 
116. 

1"  Great  Northern  Ry.  Co.  v. 
United  States,  208  U.  S.  452,  52  L. 
ed.  567,  28  S.  C.  313 ;  Hertz  v.  Wood- 
man, 218  U.  S.  205,  54  L.  ed.  1001, 
30  S.  C.  621 ;  United  States  v.  Lair, 
195  Fed.  47,  115  C.  C.  A.  49  (8th 
Cir.). 

§  191.  1  Ex  parte  Siebold,  100 
U.  S.  371,  376,  25  L.  ed.  717;    Ex 


parte  Royal,  117.  U.  S.  241,  29  L. 
ed.  868,  6  S.  C.  734 ;  Ex  parte  Yar- 
borough,  110  U.  S.  651,  654,  28  L.  ed. 
274,  4  S.  C.  152;  United  States  v. 
Hand,  et  al.,  6  McLean,  274 ;  Chicago 
etc..  Coal  Co.  v.  People,  214  111. 
421;  Norton  ;;.  Shelby  County,  118 
U.  S.  425,  442,  30  L.  ed.  178,  6  S.  C. 
1121;  In  re  Wong  Yung  Quy,  47 
Fed.  717;  Wyandott  v.  Kansas  City, 
etc.,  Co.,  56  Kansas,  577,  47  Pac. 
326;  Woolsey  v.  Dodge,  6  McLean, 
142 ;  United  States  v.  Sauer,  73  Fed. 
671. 

^  Cooley  on  Const.  Limitations, 
Star,  p.  188;  Astrom  v.  Hammond, 
3  McLean  (Fed.),  107;  Strong  v. 
Daniels,  5  Porter  (Ind.),  348;  State 
V.  Hunter,  106  N.  C.  796, 11  S.  E.  366. 


VOL.   I  — 11 


161 


CHAPTER  XIX 

EX  POST  FACTO  AND  BILLS  OF  ATTAINDER 

§  192.  Ex  Post  Facto  Legislation. 

§  193.  Limited  to  Criminal  and  Penal  Laws. 

§  194.  Changes  of  the  Law  as  to  Juries. 

§  195.  Changing  Place  of  Trial. 

§  196.  Changing  Rules  of  Evidence. 

§  197.  Bills  of  Attainder  —  Definition. 

§  198.  History  —  Other  Instances. 

§  192.   Ex  Post  Facto  Legislation. 

The  Constitution  of  tiie  United  States  proliibits  Congress  from 
passing  any  ex  post  facto  laws.  Article  1,  Section  9,  Clause  3, 
reads :  "  No  ex  post  facto  law  shall  be  passed."  A  similar  re- 
striction is  imposed  on  the  various  States.  —  "  No  State  shall 
pass  . .  .  any  ex  post  facto  Law."  ^  The  purpose  of  this  restriction 
was  to  restrain  legislative  bodies  from  making  an  act  criminal 
which  was  innocent  at  the  time  of  its  commission.^  The  generally 
adopted  definition  of  an  ex  post  facto  law  is  one  which  in  relation 
to  the  offense  or  its  consequences  alters  the  situation  of  a  party 
to  his  disadvantage.^  For  this  reason  laws  passed  to  ameliorate 
the  condition  of  persons  accused  of  crime  and  which  are  to  their 
advantage  are  not  ex  post  facto  laws.^     In  Calder  v.  Bull,  supra, 

§192.   1  Article     1,     Section     10,  343,  42  L.  ed.  lOGl,  18  S.  C.  620; 

Clause  1.  In  re  Medley,  134  U.  S.  160,  33  L. 

2  Calder  v.  Bull,  3  DaUas  (U.  S.),  ed.  835,  10  S.  C.  384. 
386,  1  L.  ed.  648.  ^  Rooney   v.    North   Dakota,    196 

»  Calder  v.  Bull,  3  Dallas  (U.  S.),  U.  S.  319,  49  L.  ed.  494,  25  S.  C.  264 ; 

386,  1  L.  cd.  648;    United  States  v.  Calder   v.    Bull,    supra;     Gibson    v. 

Hall,  2  Wash.   (C.  C.)  366;    Cum-  Mississippi,  162  U.  S.  565,  40  L.  ed. 

mings  V.  Missouri,  4  Wall.   (U.  S.)  1075,  16  S.  C.  904 ;   Mallett  v.  North 

277,  3.33,  18  L.  cd.  3.56;    Fletcher  v.  Carolina,   181   U.  S.  589,  45  L.  ed. 

Peck,  6  Cranch  (U.  S.),  87,  3  L.  ed.  1015,  21  S.  C.  730;  Kring  v.  Missouri, 

162;    Thompson  v.  Utah,  170  U.  S.  107  U.  S.  221,  27  L.  ed.  506,  2  S.  C. 

162 


Chap.  XIX]         CHANGES   OF  THE   LAW   AS   TO   JURIES  [§  194 

Mr.  Justice  Chase  laid  down  certain  rules  by  which  to  test  ex 
post  facto  legislation.  They  are  as  follows:  "  (1)  Every  law  that 
makes  an  action  done  before  the  passage  of  the  law  and  which  was 
innocent  when  done  criminal  and  punishes  such  action.  (2)  Every 
law  that  aggravates  a  crime  or  makes  it  greater  than  it  was  when 
committed.  (3)  Every  law  that  changes  the  punishment  and 
inflicts  a  greater  punishment  than  the  law  annexed  to  the  crime 
when  committed.  (4)  Every  law  that  alters  the  legal  rule  of 
evidence  and  receives  less  or  different  testimony  than  the  law 
required  at  the  time  of  the  commission  of  the  crime  in  order  to 
convict  the  offender."  ° 

§  193.  Limited  to  Criminal  and  Penal  Laws. 

The  words  ex  post  facto  when  applied  to  a  law  have  a  technical 
meaning  and  refer  to  criminal  penal  proceedings  only  and  not  to 
any  civil  proceedings.^ 

§  194.   Changes  of  the  Law  as  to  Juries. 

A  statute  requiring  members  of  the  grand  jury  to  be  persons  of 
good  intelligence,  as  well  as  qualified  voters  and  able  to  read 
and  write,  in  its  application  to  offenses  occurring  before  enactment 

443 ;    Hopt  v.  Utah,  110  U.  S.  574,  8  Pet.  (U.  S.)  88,  8  L.  ed.  876 ;  Ogden 

690,   28   L.   ed.   262,   4  S.   C.   202;  v.  Saunders,  12  Wheat.  (U.  S.)  213, 

Duncan  v.  Missouri,  152  U.  S.  377,  266,  6  L.  ed.  606 ;   Satterlee  v.  Mat- 

382,  38  L.  ed.  485,   14  S.  C.  570 ;  thewson,  2  Pet.  (U.  S.)  380,  7  L.  ed. 

Thompson  v.  Utah,   170  U.  S.  343,  458;    Briscoe  v.  Bank,   11  Pet.   (U. 

351,  42  L.  ed.  1061,  18  S.  C.  620.  S.)  257,  328,  9  L.  ed.  709;  Carpenter 

^  This  decision  has  since  been  cited  v.   Pennsylvania,    17   How.     (U.    S.) 

with   approval    and   referred    to    in  456,  463,   15  L.  ed.   127 ;    Locke  v. 

Kring  v.  Missouri,  107  U.  S.  221,  27  New  Orleans,  4  Wall.   (U.  S.)   172, 

L.  ed.  506,  2  S.  C.  443  ;    Duncan  v.  18  L.  ed.  334 ;   Walker  v.  Whitehead, 

Missouri,   152  U.  S.  377,  38  L.  ed.  16  Wall.  (U.  S.)  314,  317,  21  L.  ed. 

485,  14  S.  C.  570 ;   Gibson  v.  Missis-  357 ;     Mallett    v.    North    CaroUna, 

sippi,  162  U.  S.  565,  40  L.  ed.  1075,  181  U.  S.  589,  45  L.  ed.  1015,  21  S. 

16    S.    C.    904;     Mallett    t-.    North  C.  730;    Kring  v.  Missouri,   107  U. 

Carolina,   181  U.  S.  589,  45  L.  ed.  S.  221,  27  L.  ed.  506,  2  S.  C.  443; 

1015,  21  S.  C.  730 ;    Malloy  v.  South  Ex  parte  Medley,  134  U.  S.  160,  33 

Carolina,  237  U.  S.  180,  59  L.  ed.  L.  ed.  835,  10  S.  C.  384;   Orr  v.  GU- 

905,  35  S.  C.  507.  man,  183  U.  S.  278,  46  L.  ed.  196, 

§  193.   1  Calder  v.  Bull,  3  Dallas  22  S.  C.  213 ;   Johannessen  v.  United 

(U.  S.),  386,  1  L.  ed.  648;   Fletcher  States,  225  U.  S.  227,  56  L.  ed.  1066, 

V.  Peck,  6  Cranch  (U.  S.),  87,  138,  32  S.  C.  613. 
3   L.   fed.    162;    Watson   v.   Mercer, 

163 


§  194]        EX    POST   FACTO    AND    BILLS    OF    ATTAINDER        [Chap.  XIX 

is  not  void  as  an  ex  post  facto  law.^  But  where  the  law,  as  it 
exists  at  the  time  of  the  commission  of  an  offense,  permits  the  trial 
and  conviction  of  the  accused  upon  the  unanimous  verdict  of  a 
jury  of  twelve,  a  subsequent  change,  applicable  to  the  case  and 
permitting  him  to  be  tried  by  a  jury  of  only  eight  men,  is  as  to  this 
case  ex  post  facto. ^ 

§  195.   Changing  Place  of  Trial. 

Changing  place  of  trial  from  one  county  to  another,  or  from  one 
district  to  a  different  district  from  which  the  offense  was  com- 
mitted or  the  indictment  found  is  not  an  ex  post  facto  law  within 
the  constitutional  prohibition,  though  subsequent  to  the  com- 
mission of  the  offense  or  the  finding  of  the  indictment.^ 

§  196.   Changing  Rules  of  Evidence. 

Every  statute  that  alters  the  legal  rules  of  evidence,  which 
would  authorize  conviction  upon  less  proof,  in  amount  or  degree, 
than  was  required  when  the  offense  was  committed  is  an  ex  post 
facto  law}  Statutes  shifting  the  burden  of  proof  subsequent  to 
the  commission  of  the  offense  are  ex  post  facto  as  applied  to  persons 
on  trial  for  such  offense.^  But  statutes  which  do  not  increase  the 
punishment  nor  change  the  ingredients  of  the  offense  or  the  ultimate 
facts  necessary  to  establish  guilt,  but  leave  untouched  the  nature 
of  the  crime  and  the  amount  or  degree  of  proof  essential  to  con- 
viction, relate  to  modes  of  procedure  only,  in  which  no  one  can  be 
said  to  have  a  vested  right  and  which  the  State  upon  grounds  of 
public  policy  may  regulate  at  pleasure.^ 

§  197.  Bills  of  Attainder  —  Definition. 

A  bill  of  attainder  has  been  defined  as  a  legislative  act  which 
inflicts  punishment  without  a  judicial  trial.^     If  the  punishment 

§  194.   1  Gibson   v.   Missouri,    162  U.  S.  574,  28  L.  ed.  262,  4  S.  C.  202 ; 

U.  S.  565,  40  L.  cd.  1075,  16  S.  C.  904.  Kring  v.   Missouri,    107   U.   S.   221, 

2  Thompson   v.   Utah,    170   U.   S.  27  L.  ed.  506,  2  S.  C.  443. 

343,  3.52,  42  L.  ed.  1061,  18  S.  C.  620.  2  Cummings  v.   Missouri,   4   Wall. 

§  195.   1  Gut  V.  Minnesota,  9  Wall.  (U.  S.)  277,  18  L.  ed.  356. 

(U.  S.)  35,  39,  19  L.  ed.  573 ;    Cook  » Ilopt  v.  Utah,  110  U.  S.  574,  590, 

V.  United  States,  138  U.  S.  157,  183,  28  L.  ed.  202,  4  S.  C.  202 ;  Thompson 

34  L.  cd.  906,  11  S.  C.  268.  v.  Missouri,  171  U.  S.  380,  43  L.  ed. 

§  196.    •  Mallctt   V.    North    Caro-  204,  18  S.  C.  922. 

lina,  181  U.  S.  589,  45  L.  cd.  1015,  §  197.   1  In  re  Giacomo,  12  Blatch. 

21   S.   C.   730;    Ilopt  v.   Utah,   110  391,  Fed.  Cas.  No.  3747;  Cummings 

104 


Chap.  XIX]  HISTORY  [§  198 

be  less  than  death,  the  act  is  termed  a  bill  of  pains  and  penalties. 
By  constitutional  use  bills  of  attainder  include  bills  of  pains  and 
penalties.^ 

§  198.   History  —  Other  Instances. 

Bills  of  Attainder  first  arose  in  England  during  the  "  Wars  of 
the  Roses  ",  when  rival  families  of  the  nobility  contended  for  the 
supremacy  of  the  landed  estates  of  the  realm.  Immediately 
upon  the  rise  to  power  of  one  faction,  the  followers  of  the  defeated 
nobles  would  be  declared  to  be  attainted,  their  "  blood  corrupted  ", 
so  as  to  bar  hereditability.  In  other  words,  the  ancestor  being 
declared  guilty  of  treason,  the  heirs  would  be  deprived  of  the  lands 
which  would  naturally  come  to  them  by  virtue  of  heredity.  The 
framers  of  the  Constitution  felt  that  visiting  the  iniquities  of  the 
fathers  upon  the  children  comes  within  the  province  of  God. 
That  accounts  for  the  sharp  disapproval  of  bills  of  attainder 
which  is  evident  in  the  Constitution.  Article  1,  Section  9  of  the 
Constitution  denies  Congress  the  right  to  pass  bills  of  attainder. 
Article  1,  Section  10  places  a  similar  restriction  on  the  States. 
By  Article  3,  Section  3,  however,  attainder  of  treason  may  work 
corruption  of  blood  and  forfeiture  during  the  life  of  the  person 
attainted.^  The  effect  of  this  reservation  has  led  to  some  queer 
results.  On  July  17,  1862,  a  bill  was  passed  to  suppress  in- 
surrection, to  punish  treason  and  rebellion  and  to  seize  and  confis- 
cate the  property  of  rebels  and  for  other  purposes.  President 
Lincoln  had  refused  to  sign  this  act  until  Congress  had  passed  a 
joint  resolution  to  the  effect  that  this  Act  shall  not  be  construed 
"  to  work  a  forfeiture  of  the  real  estate  of  the  offender  beyond  his 
natural  life."  Because  of  this  resolution  which  must  be  con- 
strued as  part  of  the  Act  of  July  17,  1862,  the  Supreme  Court  of 
the  United  States  was  obliged  to  hold  that  a  condemnation  sale 
of  the  property  of  an  offender  under  this  Act  could  only  pass  to 
the  purchaser  an  estate  for  the  life  of  the  offender,  even  though 
such  an  offender  had  a  fee  simple  interest  in  the  property  and  the 

V.  Missouri,  4  Wall.  (U.  S.)  277,  18  (U.  S.)  277,  323,  18  L.  ed.  356; 
L.  ed.  356 ;  Davis  v.  Berry,  216  Fed.  Drehman  v.  Stifle,  8  Wall.  (U.  S.) 
413.  595,  601,  19  L.  ed.  508. 

2  In  re  Yung  Sing  Hee,  36  Fed.  §  198.   i  Fletcher  v.  Peck,  6  Cranch 

437;   Cummings  v.  Missouri,  4  WaU.       (U.  S.),  87,  138,  3  L.  ed.  328. 

165 


§  198]        EX    POST   FACTO    AND    BILLS    OF   ATTAINDER         [Chap.  XIX 

libel  was  against  all  the  rights,  title,  interest  and  estate  of  such 
person.^  In  Wallace  v.  Riswick,^  a  case  also  arising  under  the 
Act  of  July  17,  1862,  the  Court  held  that  an  offender  whose  land 
was  condemned  for  his  life  did  not  retain  an  estate  expectant  upon 
his  death  which  he  might  sell,  convey  or  mortgage.  The  offender 
himself  lost  all  interest  in  the  land.  During  his  life  it  belonged 
to  the  United  States  and  he  is  deprived  of  all  rights  which  go 
with  property.  In  other  words,  the  Act  of  July  17,  1862,  and 
Article  3,  Section  3  of  the  Constitution  were  designed  for  the 
protection  of  the  heirs  of  a  person  attainted  and  not  for  the  offender 
himself.  The  constitutional  inhibition  of  ex  post  facto  laws  was 
intended  to  secure  substantial  personal  rights  against  arbitrary 
and  oppressive  legislative  action,  and  not  to  obstruct  mere  alter- 
ations in  conditions  deemed  necessary  for  the  orderly  infliction 
of  human  punishment.^  Accordingly  it  has  been  held  that  a 
statute  which  will  merely  change  the  mode  of  carrying  out  a  death 
sentence,  which  is  inherently  not  inhuman,  is  not  ex  post  facto} 

2  Day  V.  Micou,  18  Wall.   (U.  S.)  ^  Malloy  v.   South   Carolina,   237 

156, 21  L.  ed.  860 ;  Bigelow  v.  Forrest,  U.  S.  180,  59  L.  ed.  905,  35  S.  C.  507. 
9  Wall.  (U.  S.)  339,  19  L.  ed.  696.  »  Malloy  v.   South  Carolina,   237 

» 92  U.  S.  202,  23  L.  ed.  473.  U.  S.  180,  59  L.  ed.  905,  35  S.  C.  507. 


166 


CHAPTER  XX 

STATUTES  OF  LIMITATIONS 

§  199.   Capital  Offenses. 

§  200.   Offenses  Not  Capital. 

§  201 .   Contempts  —  Polygamy  —  Conspiracy. 

§  202.   Fleeing  from  Justice. 

§  203.   Crimes  under  Internal  Revenue  Laws. 

§  204.    Crimes  under  Revenue  or  Slave  Trade  Laws. 

§  205.   Penalties  and  Forfeitiu-es ;   under  Laws  of  United  States. 

§  206.   Under  Customs  Revenue  Laws. 

§  207.   Procedure. 

§  199.   Capital  Offenses. 

The  statute  provides :  "  No  person  shall  be  prosecuted,  tried, 
or  punished  for  treason  or  other  capital  offense,  wilful  murder 
excepted,  unless  the  indictment  is  found  within  three  years  next 
after  such  treason  or  capital  offense  is  done  or  committed."  ^ 

§  200.   Offenses  Not  Capital. 

The  statute  provides :  "  No  person  shall  be  prosecuted,  tried, 
or  punished  for  any  offense,  not  capital,  except  as  provided  in 
section  one  thousand  and  forty-six,  unless  the  indictment  is  found, 
or  the  information  is  instituted  within  three  years  next  after  such 
offense  shall  have  been  committed.  But  this  act  shall  not  have 
effect  to  authorize  the  prosecution,  trial  or  punishment  for  any 
offense,  barred  by  the  provisions  of  existing  laws."  ^  This  section 
applies  to  all  misdemeanors  which  are  constituted  offenses  against 
the  United  States  and  added  by  Congress  to  the  list  of  statutory 
crimes.^    A  defendant  indicted  for  an  offense,  other  than  capital, 

§  199.   1  Revised  Statute  §  1043.  2  United   States   v.    Central    Ver- 

§  200.   1  Revised   Statute    §  1044,      mont  R.  Co.,  157  Fed.  291. 

amended   April    13th,    1876,    c.    56, 

19  Stat.  L.  32. 

167 


§  200]  STATUTES  OF  LIMITATIONS  [Chap.  XX 

against  the  United  States,  cannot  avail  himself  of  the  defense  of 
the  three  year  limitation  by  demurrer,  where  the  indictment  does 
not  show  on  its  face  that  the  defendant  is  not  within  the  exception 
of  persons  fleeing  from  justice.  The  proper  practice  is  for  the 
defendant  to  file  special  plea  in  abatement.^  The  running  of  the 
three  year  statute  prescribed  by  this  section  for  criminal  prose- 
cutions to  punish  crimes  within  this  section,  such  as  criminal 
contempt  of  an  injunction  against  a  boycott,  begins,  as  to  each 
specific  act  charged  from  the  date  of  the  commission  of  such  act.* 

§  201 .   Contempts  —  Polygamy  —  Conspiracy. 

Contempts  of  courts  are  crimes  which  are  governed  by  the  three 
year  statute  of  limitations.^  The  offense  of  bigamy  or  polygamy 
consists  in  the  fact  of  unlawful  marriage,  and  a  prosecution  against 
the  offender  is  barred  by  the  lapse  of  three  years  ,^  and  is  extended 
to  cases  coming  under  the  white  slave  laws.^  A  conspiracy  runs 
from  the  commission  of  the  overt  act.*  If  there  is  a  continuing 
series  of  overt  acts,  the  statute  runs  from  the  last  overt  act,^ 
and  not  from  the  date  of  the  conspiracy.^ 

§  202.   Fleeing  from  Justice. 

By  express  provision  of  the  Statute  it  is  provided :  "  Nothing 
in  the  two  preceding  sections  shall  extend  to  any  person  fleeing 
from  justice."  ^  It  is  not  necessary  to  constitute  one  a  "  person 
fleeing  from  justice  "  that  he  should  have  left  the  United  States, 
but  it  is  sufficient  that  he  had  left  the  district  in  which  the  offense 
was  committed  when  it  was  sought  to  apprehend  him  therefor, 
and  was  found  in  another  district,  in  which  he  did  not  reside,  under 
circumstances  indicating  a  purpose  to  evade  the  authority  of  the 
courts  having  jurisdiction.^     An  intent  to  avoid  the  justice  of  the 

» United  States  v.  Brace,  143  Fed.  ■•  United  States  v.  Owens,  32  Fed. 

703.  534. 

♦Gompors  v.   United  States,   233  '  Hedderly  v.  United  States,   193 

U.  S.  604,  58  L.  ed.  1115,  34  S.  C.  G93.  Fed.  561,  114  C.  C.  A.  227  (9th  Cir.). 

§201.    '  Gompers  t;.  United  States,  'Mitchell   v.   United  States,    196 

233  U.  S.  604,  58  L.  ed.  1115,  34  S.  Fed.   874,    116   C.    C.    A.    436   (9th 

C.  693.  Cir.). 

2  Murphy  v.  Ramsey,  114  U.  S.  15,  §  202.   »  Revised  Statute  §  1045. 

29  L.  ed.  47,  55  S.  C.  747.  2  Greene    v.    United    States,    154 

» United  States  v.  Lair,  195  Fed.  Fed.  401,  85  C.  C.  A.  251  (5th  Cir.). 
47,  115  C.  C.  A.  49  (8th  Cir.). 

108 


Chap.  XX]  INSTANCES  [§  204 

state  having  jurisdiction,  and  not  only  the  intent  to  avoid  justice 
of  the  United  States,  brings  the  defendant  under  this  section.^ 

§  203.   Crimes  under  Internal  Revenue  Laws. 

The  statute  further  provides :  "  No  person  shall  be  prosecuted, 
tried  or  punished  for  any  of  the  various  offenses  arising  under  the 
internal  revenue  laws  of  the  United  States  unless  the  indictment 
is  found  or  the  information  instituted  within  three  years  next 
after  the  comnaission  of  the  offense,  in  all  cases  where  the  penalty 
prescribed  may  be  imprisonment  in  the  penitentiary,  and  within 
two  years  in  all  other  cases  :  Provided,  That  the  time  during  which 
the  person  committing  the  offense  is  absent  from  the  district 
wherein  the  same  is  committed  shall  not  be  taken  as  any  part  of 
the  time  limited  by  law  for  the  commencement  of  such  proceed- 
ings; Provided  further  that  the  provisions  of  this  act  shall  not 
apply  to  offenses  committed  prior  to  its  passage :  And  provided 
further  that  where  a  complaint  shall  be  instituted  before  a  Com- 
missioner of  the  United  States  within  the  period  above  limited, 
the  time  shall  be  extended  until  the  discharge  of  the  Grand  Jury 
at  its  next  session  within  the  district:  And  provided  further 
that  this  act  shall  not  apply  to  offenses  committed  by  officers 
of  the  United  States."  ^  This  section  supersedes  Revised  Statutes 
§  1046  to  the  extent  of  making  a  limitation  of  three  years  for 
offenses  of  this  character. 

§  204.   Crimes  under  Revenue  or  Slave  Trade  Laws. 

The  procedure  is  provided  for  by  the  statute  as  follows :  "  No 
person  shall  be  prosecuted,  tried  or  punished  for  any  crime  arising 
under  the  revenue  laws,  or  the  slave-trade  laws  of  the  United  States, 
unless  the  indictment  is  found  or  the  information  is  instituted 
within  five  years  next  after  the  committing  of  such  crime."  ^ 
Under  this  section,  a  prosecution  by  information  is  expressly 
recognized  by  Congress.^  An  indictment  under  "  An  Act  to  pro- 
vide internal  revenue  to  support  the  government  "  charging  the 
defendant  with  not  having  paid  the  special  tax  imposed  by  law  is 

» Streep    v.    United    States,     160  §  204.  i  Revised   Statute    §  1046. 

U.  S.  128,  40  L.  ed.  365,  16  S.  C.  244.  ^  In  re  Wilson,   18  Fed.   33  ;    Ex 

§203.  ^Act  of  July  5th,  1884,  parte  WUson,  114  U.  S.  417,  29  L. 
c.  225,  §  1,  23  Stat.  L.  122.  ed.  89. 

169 


§  204]  STATUTES   OF   LIMITATIONS  [Chap.  XX 

an  offense  under  the  revenue  law.^    This  section  does  not  extend 
to  conspiracies  to  defraud  the  government  of  duties  in  imports.'* 

§  205.  Penalties  and  Forfeitures ;  under  Laws  of  United 
States. 

Congress  provided  further :  "  No  suit  or  prosecution  for  any 
penalty  or  forfeiture,  pecuniary  or  otherwise,  accruing  under  the 
laws  of  the  United  States,  shall  be  maintained,  except  in  cases 
where  it  is  otherwise  specially  provided,  unless  the  same  is  com- 
menced within  five  years  from  the  time  when  the  penalty  or  for- 
feiture accrued :  Provided,  That  the  person  of  the  offender,  or 
the  property  liable  for  such  penalty  or  forfeiture,  shall,  within 
the  same  period,  be  found  within  the  United  States ;  so  that  the 
proper  process  therefor  may  be  instituted  and  served  against  such 
person  or  property."  ^  This  section  refers  to  fines,  penalties,  and 
forfeitures,  and  provides  for  a  five  year  statute  of  limitations,  but 
does  not  apply  to  customs  revenue  cases  which  are  subject  to  the 
three  year  limitation  for  similar  proceedings  and  provided  for  in 
section  22.^  This  section  refers  to  suits  by  the  government  against 
carriers  for  violation  of  the  laws  against  discrimination.^  A 
waiver  of  the  statutory  defense  as  to  causes  in  a  second  amended 
declaration  does  not  extend  to  an  entirely  different  statement  of 
offense.^  This  limitation  does  not  apply  to  the  action  for  three- 
fold damages  for  injury  to  "  business  or  property  "  authorized 
by  the  Anti-Trust  Act.^ 

§  206.   Under  Customs  Revenue  Laws. 

A  similar  rule  is  provided  for  by  statute  under  the  revenue  laws : 
"  No  suit  or  action  to  recover  any  pecuniary  penalty  or  forfeiture 
of  property  accruing  under  the  customs  revenue  laws  of  the  United 
States  shall  be  instituted  unless  such  suit  or  action  shall  be  com- 
menced within  three  years  after  the  time  when  such  penalty  or 

» United  States  v.  Wright,  14  Fed.  R.  Co.,  143  Fed.  99,  74  C.  C.  A.  293 

Cas.  No.  16770.  (5th  Cir.). 

*  United  States  v.  Hirsch,  100  U.  *  United   States   v.   Dwight   Mfg. 

S.  33,  25  L.  ed.  539.  Co.,  210  Fed.  79. 

§  206,   »  Revised   Statute    §  1047.  '  Chattanooga    Foundry    &    Pipe 

»  United  States  v.  Wittemann,  152  Works  v.  Atlanta,  203  U.  S.  390,  51 

Fed.  377,  81  C.  C.  A.  503  (2d  Cir.).  L.  ed.  241,  27  S.  C.  65 ;  United  States 

Carter  v.  New  Orleans  &  N.  E.  v.  Joles,  251  Fed.  417. 
170 


Chap.  XX] 


PROCEDURE 


[§207 


forfeiture  shall  have  accrued :  Provided,  That  the  time  of  the 
absence  from  the  United  States  of  the  person  subject  to  such 
penalty  or  forfeiture,  or  of  any  concealment  or  absence  of  the 
property,  shall  not  be  reckoned  within  this  period  of  limitation."  ^ 
The  limitation  under  this  section  runs  whether  the  holder  of  the 
property  or  the  customs  officials  have  knowledge  or  not.^ 

§  207.  Procedure. 

Where  the  facts  showing  the  bar  of  the  prosecution  by  the 
statute  of  limitations  appear  from  the  face  of  the  indictment,  they 
may  be  taken  advantage  of  by  demurrer ;  if  it  does  not  so  appear 
from  the  face  of  the  indictment,  the  proper  remedy  is  by  a  special 
plea  in  the  nature  of  abatement  of  the  action.^  The  statute  of 
limitations  cannot  be  set  up  as  a  defense  by  way  of  demurrer 
where  the  act  which  defines  the  offense  contains  no  exception  or 
proviso  of  any  kind.^  A  plea  of  the  statute  of  limitations  is  a 
plea  to  the  merits.^  A  motion  to  quash  an  indictment  on  the 
ground  that  the  offense  was  barred  by  the  statute  of  limitations  is 
in  substance  a  plea  in  bar.'*  A  special  plea  in  bar  based  on  the 
statute  of  limitations  to  an  indictment  for  conspiracy  containing 
allegations  of  conspiracy  to  the  date  of  filing,  is  not  permissible; 
that  defense  must  be  made  under  the  general  issue. ^ 


§206.  »Act  of  June  22,  1874, 
c.  391,  §  22,  18  Stat.  L.  190. 

^  United  States  v.  One  Dark  Bay 
Horse,  130  Fed.  240. 

§  207.  1  United  States  v.  Brace, 
143  Fed.  703. 

^  United  States  v.  Cook,  17  Wall. 
(U.  S.)  168,  21  L.  ed.  538. 

» United  States  v.   Oppenheimer, 


242  U.  S.  85,  61  L.  ed.  161,  37  S.  C. 
68. 

*  United  States  v.  Barber,  219 
U.  S.  72,  55  L.  ed.  99,  31  S.  C.  209; 
United  States  v.  Oppenheimer,  supra. 

°  United  States  v.  Kissel,  218 
U.  S.  601,  54  L.  ed.  1168,  31  S.  C. 
124;  United  States  v.  Barber,  219 
U.  S.  72,  55  L.  ed.  99,  31  S.  C.  209.  i 


171 


CHAPTER  XXI 

CHANGE  OF  VENUE 

§  208.  For  Prejudice  of  Judge. 

§209.  Procedure. 

§  210.  Certificate  of  Counsel. 

§  211.  Duty  of  Counsel  and  Court. 

§  212.  Object  of  Statute. 

§  213.  The  Statute  Should  Be  Liberally  Construed. 

§  208.   For  Prejudice  of  Judge. 

Section  21  of  Federal  Judicial  Code  provides :  "  Whenever  a 
party  to  any  action  or  proceeding,  civil  or  criminal,  shall  make  and 
file  an  affidavit  that  the  judge  before  whom  the  action  or  pro- 
ceeding is  to  be  tried  or  heard  has  a  personal  bias  or  prejudice 
either  against  him  or  in  favor  of  any  opposite  party  to  the  suit, 
such  judge  shall  proceed  no  further  therein,  but  another  judge 
shall  be  designated  in  the  manner  prescribed  in  the  section  last 
preceding,  or  chosen  in  the  manner  prescribed  in  section  twenty- 
three,  to  hear  such  matter.  Every  such  affidavit  shall  state 
the  facts  and  the  reasons  for  the  belief  that  such  bias  or  prejudice 
exists,  and  shall  be  filed  not  less  than  ten  days  before  the  beginning 
of  the  term  of  the  court,  or  good  cause  shall  be  shown  for  the 
failure  to  file  it  within  such  time.  No  party  shall  be  entitled  in 
any  case  to  file  more  than  one  such  affidavit ;  and  no  such  affidavit 
shall  be  filed  unless  accompanied  by  a  certificate  of  counsel  of 
record  that  such  affidavit  and  application  are  made  in  good 
faith.  The  same  proceedings  shall  be  had  when  the  presiding  judge 
shall  file  with  the  clerk  of  the  court  a  certificate  that  he  deems 
himself  unable  for  any  reason  to  preside  with  absolute  impartiality 
in  the  pending  suit  or  action."  ^  It  was  held  that  this  section 
does  not  apply  to  the  Appellate  Federal  Courts.^ 

208.    '  30  St.it.  L.  1090."  Co.,  213  Fed.  449,  130  C.  C.  A.  686 

*  Kinney  v.  Plyniouih  Rock  Squab       (1st.  Cir.). 

172 


Chap.  XXI]  CERTIFICATE   OF   COUNSEL  [§  210 

§  209.  Procedure. 

It  gives  the  right  to  a  litigant  in  the  Federal  Courts  to  object  to 
a  judge  because  of  bias,  providing  the  objections  are  set  forth  in 
an  affidavit  filed  ten  days  before  the  opening  of  the  term.  The 
law  is  retroactive.^  There  is  one  exception  to  the  rule.  When 
there  is  to  be  a  second  trial  during  the  same  term,  the  affidavit 
must  be  filed  immediately  after  the  decision  of  the  appellate 
court  has  been  entered.^  Judge  Jones  held  ^  that  the  affidavit 
for  change  of  venue  must  contain  facts  upon  which  the  affiant 
bases  his  belief  that  the  judge  is  prejudiced  against  him,  and  that 
literal  construction  of  the  statute  would  render  it  unconstitutional. 
The  bias  referred  to  in  Section  21  must  be  the  personal  bias  of 
the  judge  towards  the  party  seeking  the  change  of  venue.'*  It  was 
held  also  that  the  judge  could  not  be  disqualified  because  of  bias, 
simply  because  he  had  preconceived  ideas  as  to  a  party's  right 
to  recover.^ 

§  210.   Certificate  of  Counsel. 

It  is  to  be  regretted  that  Congress  has  seen  fit  to  require  a 
certificate  of  counsel  as  a  prerequisite  to  granting  a  change  of 
venue.  An  attorney  is  an  officer  of  the  court ;  he  appears  before 
the  court  in  his  professional  capacity  and  harmonious  relations 
between  the  two  are  most  desirable.  Such  a  charge  on  the  part 
of  counsel  that  his  superior  officer,  the  judge,  is  unfair  and  unfit 
to  sit  in  the  case  will,  most  likely,  prejudice  the  future  standing  of 
the  attorney  with  that  judge.  Consequently  the  situation  tends 
to  intimidate  the  lawyer  in  the  discharge  of  his  duty  to  his  client. 
]\Ioreover,  this  statute  is  in  conflict  with  Section  272  of  the  Federal 
Judicial  Code,  providing  "  in  all  courts  of  the  United  States  the 
parties  may  plead  and  manage  their  own  causes  personally,  or  by 
the  assistance  of  such  counsel  or  attorneys  at  law  as,  by  the  rules 
of  the  said  court,  respectively,  are  permitted  to  manage  and  con- 

§  209.    'Henry  v.  Speer,  201  Fed.  '  Ex    parte     Fairbanks    Co.,    194 

869,    120  C.   C.   A.   207    (5th  Cir.),  Fed.  978. 

Reversing  191  Fed.  868.  ''In  re  M.  K.  Fairbanks  Co.,  194 

2  Shea  V.  United  States,  251  Fed.  Fed.  978;  Pacific  Coal  Co.  v.  Pioneer 

433    (C.    C.    A.  6th  Cir.).     Petition  Mining  Co.,  205  Fed.  577  (C.  C.  A. 

for   writ   of   certiorari   denied    in    63  9th  Cir.). 

L.  ed.  172,  39  S.  C.  132.  ^  Henry  v.  Speer,  201   Fed.   869, 

120  C.  C.  A.  207  (5th  Cir.). 

173 


§  210]  CHANGE    OF   VENUE  [Chap.  XXI 

duct  causes  therein."  And  the  Supreme  Court  of  the  United 
States/  before  this  statute  was  enacted,  distinctly  held  that 
"  natural  persons  may  appear  in  person  or  by  attorney.  .  .  ." 
It  would  seem  that  the  certificate  of  counsel  must  be  made  by  an 
attorney  admitted  to  practice  in  the  district  where  the  cause  is 
pending.^ 

§  211.   Duty  of  Counsel  and  Court. 

If  counsel  for  the  defense  at  the  time  the  defendant  is  arraigned 
for  pleading  is  of  the  opinion  that  his  client  "  would  not  be  treated 
fairly  and  impartially,  it  is  not  only  his  privilege,  but  his  bounden 
duty  to  his  client  to  have  availed  himself  of  this  statute."  When 
the  conditions  of  the  statute  are  complied  with  it  is  the  duty  of 
the  presiding  judge  to  grant  the  petition  for  change  of  venue.^ 

§  212.   Object  of  Statute. 

This  section  was  enacted  for  the  purpose  of  enabling  one  who 
in  good  faith  feels  that  he  could  not  obtain  a  fair  and  impartial 
trial  before  a  particular  judge  to  have  his  case  transferred  for 
trial  before  another.^  Section  21  was  not  intended  to  enable  a 
discontented  litigant  to  oust  a  judge  because  of  previous  adverse 
rulings  made  by  him.  Neither  was  it  intended  to  paralyze  the 
action  of  a  judge  who  heard  the  case,  or  a  question  in  it.  If  the 
rulings  are  erroneous,  they  must  be  corrected  by  appeal  or  error .^ 

§  213.   The  Statute  Should  Be  Liberally  Construed. 

Thus  far  the  statute  has  received  a  very  narrow  and  technical 
construction.  The  judiciary  should  bear  in  mind  that  the  statute 
was  passed  in  derogation  of  the  common  law.  It  is  remedial  in 
nature,  and  for  that  reason  it  should  be  liberally  construed  with 

§210.   lOsborn  v.  United  States  252   Fed.  435   (C.   C.  A.  4th  Cir.). 

Bank,   9  Wheat.    (U.  S.)   738,  6  L.  Petition  for  writ  of  certiorari  denied, 

cd.  204.  248  U.  S.  568, 63  L.  ed.  15,  39  S.  C.  10. 

"^  Ex    parte     Fairbank    Co.,     194  ^  Ex  parte  American  Steel  Barrel 

Fed.  978.  Co.,  230   U.  S.  35,  57  L.  ed.   1379, 

§211.    '  Wierse  v.  United  States,  33  S.  C.  1007;    Mandamus  will  not 

252   Fed.  435   (C.   C.   A.   4th  Cir.).  lie    to    compel    a  change    of    venue. 

Petition  for  certiorari  denied,  —  U.  Ex  parte  American  Steel  Barrel  Co., 

S.  — ,  63  L.  ed.  15,  39  S.  C.  10.  230  U.  S.  35,  57  L.  ed.  1379,  33  S.  C. 

§  212.   »  Wierse  v.  United  States,  1007. 
174 


Chap.  XXI]       STATUTE    SHOULD    BE    LIBERALLY    CONSTRUED      [§  213 

a  view  towards  correcting  the  mischief.^  When  a  judge  is  accused 
of  bias  and  prejudice  it  should  not  be  left  to  his  discretion,  or  his 
sense  of  decency,  to  decide  whether  he  shall  act  or  not.^  At 
common  law  there  were  but  two  objections  that  could  be  raised 
to  disqualify  a  judge,  —  interest  in  the  cause  litigated,  or  kin  to 
one  of  the  litigants.  No  amount  of  general  bias  would  disqualify 
a  judge.^  Accordingly,  it  is  settled  that  partiality  and  bias  are 
presumed  from  the  relationship  or  consanguinity  of  a  judge  to 
the  party .^  Appellate  Courts  gradually  came  to  recognize  the 
narrowness  of  the  common  law  rule ;  they  felt  that  a  litigant  should 
be  accorded  the  privilege  of  objecting  to  a  judge  who  was  actually 
biased,  provided  the  objection  was  made  in  good  faith. ^  The 
right  to  disqualify  a  judge  because  of  bias  has  not  been  made 
statutory  in  some  jurisdictions.  It  is  merely  a  privilege  granted 
by  the  courts.  Of  course  a  judge  in  such  a  jurisdiction  has  the 
right  to  try  the  case  unless  one  of  the  parties  objects.  The  decision 
of  such  a  judge  is  not  void,  but  voidable.  If  a  litigant  knows  that 
the  judge  is  biased,  he  should  make  his  objection  in  the  form  required 
by  the  courts  of  that  particular  state.  No  appellate  court  will 
permit  a  litigant  to  raise  this  objection  for  the  first  time  on  appeal.^ 
There  is  only  one  exception  to  this  rule.  That  is  when  the  injured 
party  was  ignorant  of  the  judge's  bias  until  the  cause  had  been 
adjudicated.  The  proper  remedy  in  such  a  case  is  by  writ  of 
error.^  When  the  power  to  object  to  a  judge  because  of  bias  is 
made  a  right  by  statute,  instead  of  a  mere  privilege  granted  by  the 
court,  then  the  judge  is  disqualified  by  law,  and  any  decision 
rendered  by  him  in  such  a  case  is  void.^  In  some  states  where 
there  has  been  such  legislative  enactment,  the  courts  hold  that 
the  mere  allegation  that  the  judge  is  biased  or  prejudiced  against 

§213.   1  Henry  r.  Harris,  191  Fed.  105;     Ex     parte    Gold    T.    Curtis, 

868.  3   Minn.   274;     Tjosevig  v.   United 

!*  Oakley   v.   Aspinwall,   3   N.   Y.  States,   255   Fed.   5   (C.   C.   A.   9th 

547.  Cir.) ;     Contra :     Johnson    v.    State, 

3  Conn   V.    Chadwick    &    Co.,    17  87  Ark.  45. 

Florida,   439;    In  re  Davis'  Estate,  «  Findley  r.  Smith,  42  W.  Va.  299. 

11     Montana,     1;      Cooley     Const.  '  Ex  parte  Glasgow,  195  Fed.  780, 

Limitations  (5th  Ed.),   115.  783;    Findley  v.  Smith,  42  W.  Va. 

4  Oakley   v.    Aspinwall,    3    N.    Y.  299. 

547.  8  Oakley   v.    Aspinwall,    3    N.    Y. 

5  Le  Hane  v.  Nebraska,  48   Neb.       547 ;  Moses  v.  Juhan,  45  N.  H.  52.    j 

175 


§  213]  CHANGE    OF    VENUE  [Chap.  XXI 

the  defendant  is  sufficient  ground  for  a  change  of  venue. ^  In  re 
Washoe  Cooper  Co.  v.  Hickey/°  the  court  said:  "To  disquahfy 
a  judge  the  htigant  is  not  required  to  state  any  facts  upon  which 
his  claim  of  the  judge's  bias  or  prejudice  is  founded,  and  in  this 
aspect  of  the  case  the  proceeding  is  analogous  to  that  invoked  in 
the  exercise  of  a  peremptory  challenge  to  a  juror.  It  is  not  the 
bias  or  prejudice  which  works  his  disqualification,  but  the  mere 
filing  of  an  affidavit  in  time  even  though  the  judge  against  whom 
it  is  aimed  be  entirely  free  from  either  charge."  Next  in  impor- 
tance to  the  duty  of  rendering  a  righteous  judgment  is  that  of 
doing  it  in  such  manner  as  will  beget  no  suspicion  of  fairness  and 
integrity  of  the  judge.^^  This  statute  should  be  revised  at  an  early 
date  by  Congress.  As  it  stands  now  it  is  of  little  benefit  to  the 
public  and  is  productive  of  much  mischief. 

'  McGoon  V.  Little,  et  al.,  7  111.  "  People  v.  Suffolk,  Common  Pleas, 

42;     Vogel   v.    MUwaulcee,    47    Wis.  18  Wend.    (N.   Y.)   550;    Oakley  v. 

435.  AspinwaU,  3  N.  Y.  547. 

i»  46  Montana,  363,  128  Pac.  584. 


176 


CHAPTER  XXII 

ARRAIGNMENT  AND  PLEA 

§214.  Standing  Mute. 

§  215.  Effect  of  the  Plea  of  Not  Guilty. 

§  216.  Demurrer —  Defects  in  Indictment. 

§  217.  Defects  in  Indictment. 

§  218.  Election  of  Counts. 

§219.  Separate  Trials. 

§  220.  Accepting  and  Withdrawing  Pleas  —  Plea  of  Guilty. 

§  221.  Withdrawing  Plea  of  Not  Guilty. 

§  222.  Plea  of  Nolo  Contendere. 

§  223.  An  Escaped  Defendant  Has  No  Standing  in  Court. 

§  224.  Death  of  the  Accused  —  Abatement  of  Crime. 

§  214.   Standing  Mute. 

"When  any  person  indicted  for  any  oiTense  against  the  United 
States,  whether  capital  or  otherwise,  upon  his  arraignment 
stands  mute,  or  refuses  to  plead  or  answer  thereto,  it  shall  be 
the  duty  of  the  court  to  enter  the  plea  of  not  guilty  on  his  behalf, 
in  the  same  manner  as  if  he  had  pleaded  not  guilty  thereto.  And 
when  the  party  pleads  not  guilty,  or  such  plea  is  entered  as  afore- 
said, the  cause  shall  be  deemed  at  issue,  and  shall,  without  further 
form  of  ceremony,  be  tried  by  a  jury."  ^  "To  arraign,"  says 
Blackstone,  "is  nothing  else,  but  to  call  the  prisoner  to  the  bar 
of  the  court,  to  answer  the  matter  charged  upon  him  in  the  indict- 
ment, after  which  it  is  to  be  demanded  of  him  whether  he  is 
guilty  of  the  crime,  whereof  he  stands  indicted,  or  not  guilty."  - 
The  object  of  the  arraignment  is  to  acquaint  the  defendant  with 
the  accusation  and  obtain  his  plea.^  There  can  be  no  valid  trial 
without  a  plea.*     When  a  defendant  is  called  to  the  bar,  and 

§  214.   1  Revised  Statute,  §  1032.  ^  Grain  v.  United  States,   162  U. 

2  4  Bl.  Com.  322,  323-334.  S.  625,  40  L.  ed.  1097,  16  S.  C.  952; 

'  Harris  v.  United  States,  4  Okia-  Shelp  v.  United  States,  81  Fed.  694, 

homa  Criminal  Appeals,  377.  26  C.  C.  A.  570  (9th  Cir.). 

VOL.  I— 12  177 


§  214]  ARRAIGNMENT  AND   PLEA  [Chap.  XXII 

stands  mute,  or  refuses  to  plead,  it  is  the  duty  of  the  court  to 
enter  a  plea  of  '  Not  Guilty  '  in  his  behalf,  in  the  same  way  as  if 
he  had  pleaded  not  guilty.^  This  statute  proceeds  upon  the 
principle  that  before  a  trial  can  be  legally  commenced,  there  must 
be  an  issue  to  try,  and  that  a  plea  by  or  for  the  accused  is  essential 
to  the  formation  of  the  issue.^  There  is  no  explicit  provision  in 
the  laws  of  the  United  States  describing  what  shall  constitute  an 
arraignment,  but  so  far  as  it  is  expressed  it  has  a  definite  meaning. 
It  is  sufiicient  if  the  record  showing  the  arraignment  follows  the 
language  of  the  statute.^  At  early  common  law,  an  arraignment 
was  not  complete  without  a  plea.^  Whether  the  prisoner  was 
properly  arraigned  originally  was  held  to  be  a  matter  of  substance 
and  not  of  form,^  but  later  decisions  hold  that  it  is  a  matter  of 
form.^^  It  was  held  in  thfe  Grain  case,  supra,  that  it  must  appear 
from  the  record  as  a  prerequisite  to  due  process  of  law  that  the 
defendant  was  duly  arraigned.  But  a  later  case  ^^  overruled  the 
Grain  case  and  laid  down  the  rule  that  it  was  not  necessary 
that  the  record  should  show  the  arraignment  but  that  it  must 
appear  that  the  accused  had  sufficient  notice  of  the  accusation 
and  charge  against  him  and  an  adequate  opportunity  to  de- 
fend himself.  But  it  will  be  noted  that  the  later  decisions  do  not 
go  so  far  as  to  hold  that  the  formality  of  an  arraignment  can 
be  dispensed  with  entirely. 

§  215.  Effect  of  the  Plea  of  Not  Guilty. 

Pleas  of  not  guilty  put  in  issue  every  material  allegation  in 
the  indictment.^  Under  the  general  issue  all  defenses,  including 
the  plea  of  statute  of  limitations,  are  open  to  the  defendant.^ 

^  Revised  Statute  §  1032.      .  States,  242  Fed.  751  (C.  C.  A.  7th 

"  Grain  v.  United  States,  Supra.  Cir.). 

^  Johnson   v.   United   States,   225  "  Garland  v.  Washington,  supra. 

U.  S.  405,  56  L.  ed.  1142,  32  S.  C.  §215.   i  Prettyman      v.      United 

748.  States,   180  Fed.  30,   103  C.  C.  A. 

8  4  Bl.  Com.  323-341 ;  1  Chitty's  384    (6th    Cir.) ;     Smith    v.    United 

Crim.  Law  419.  States,  208  Fed.  131,  125  C.  C.  A. 

•Crain  v.  United  States,  supra;  353  (8th  Cir.). 
Johnson  v.  United  States,  supra.  *  United  States  v.  Kissel,  218  U. 

•"Garland     v.     Washington,     232  S.  61,  54   L.  ed.  1168,  —  S.  C.  — ; 

U.  S.  642,  58  L.  cd.  772,  34  S.  C.  456,  United  States  v.  Barber,  219  U.  S. 

overruling    the    Grain    case,    supra,  72,  55  L.  ed.  99,  —  S.  C.  — . 
and    Abbott    Bros.    Go.    v.    United 
178 


Chap.  XXII]  DEMURRER  [§  216 

The  plea  of  not  guilty  not  only  raises  an  issue  as  to  every  fact  and 
inference  which  may  tend  to  support  the  specific  charge  upon 
which  the  defendant  is  being  tried,  but  also  contests  the  existence 
or  legal  efficacy  of  every  fact  which  may  tend  to  convict  him  of 
any  minor  offense  which  may  be  included  in  the  offense  laid  in 
the  accusation.^  Matters  subsequent  to  the  arrest  or  indictment 
are  for  the  consideration  of  the  jury  and  are  admissible  under  the 
plea  of  not  guilty.^ 

§  216.   Demurrer  —  Defects  in  Indictment. 

The  statute  provides  :  "  In  every  case  in  any  court  of  the  United 
States,  where  a  demurrer  is  interposed  to  an  indictment,  or  to  any 
count  or  counts  thereof,  or  to  any  information,  and  the  demurrer 
is  overruled,  the  judgment  shall  be  respondeat  ouster;  and  there- 
upon a  trial  may  be  ordered  at  the  same  term,  or  a  continuance 
may  be  ordered,  as  justice  may  require."  ^  In  order  to  quash  an 
indictment,  a  demurrer  must  be  filed,  or  a  motion  to  quash  made, 
or  objections  to  the  indictment  effectively  taken,  before  the  judg- 
ment is  entered.  Nothing  less  than  substantial  failure  in  a 
matter  of  substance  in  the  indictment  can  avail  defendant  after 
judgment  is  entered.^  But  the  insufficiency  of  an  indictment,  if  it 
utterly  fails  to  charge  an  offense  against  the  United  States,  may  be 
questioned  for  the  first  time  in  a  court  of  appeals  on  a  writ  of 
error .^  The  defendant  cannot  object  to  the  insufficiency  of  the 
indictment  at  the  trial.  It  is,  however,  within  the  discretion  of 
the  trial  judge  to  vary  this  rule.^ 

>  Jones  V.  The  State,  12  Ga.  App.  Cir.) ;  Dunbar  v.  United  States,  156 

133,  62  S.  E.  239.  U.  S.  185,  39  L.  ed.  390,   15  S.  C. 

*  Stern     v.    United    States,     223  325;    Rosen  v.  United  States,    161 

Fed.    762,    139    C.   C.  A.   292    (2d  U.  S.   29,  40  L.  ed.  606,  16  S.   C. 

Cir.);     Moffatt    v.    United    States,  434. 

232  Fed.  522,  533,  146  C.  C.  A.  480  » Rosen  v.  United  States,  161  U. 

(8th  Cir.) ;  Bettman  v.  United  States,  S.  29,  40  L.  ed.  006,  16  S.  C.  434. 
224  Fed.   819,    140    C.    C.    A.    265  « United    States    v.    Gooding,    12 

(6th  Cir.);    Hair  v.   United   States,  Wheat.   (U.  S.)  460,  8  L.  ed.  693; 

240  Fed.  333,  153  C.  C.  A.  259  (7th  Estes    v.    United    States,    227    Fed. 

Cir.).  818,142  C.  C.    A.  342    (8th    Cir.); 

§  216.   1  Revised  Statute  §  1026.  M'Knight    v.    United    States,    252 

2  Ulmer    i;.    United    States,    219  Fed.  687  (C.  C.  A.  8th  Cir.) 
Fed.    641,   134  C.  C.   A.   127    (6th 

179 


§  217]  ARRAIGNMENT   AND    PLEA  [Chap.  XXII 

§  217.  Defects  in  Indictment. 

The  statute  provides  "  No  indictment  found  and  presented  by 
a  grand  jury  in  any  district  [or  circuit]  or  otlier  court  of  tlie  United 
States  shall  be  deemed  insufficient,  nor  shall  the  trial,  judgment,  or 
other  proceeding  thereon  be  affected  by  reason  of  any  defect  or  im- 
perfection in  matter  of  form  only  which  shall  not  tend  to  the  prej- 
udice of  the  defendant."  ^  In  view  of  this  statute,  it  may  be  laid 
down  as  a  general  rule  that  a  mere  irregularity  or  defect  in  the 
form  of  the  proceedings  which  did  not  tend  to  the  prejudice  of 
the  defendant  should  not  be  ground  for  a  new  trial.-  It  has 
been  held  that  questions  of  duplicity  of  an  indictment  must  be 
raised  by  special  demurrer  and  that  it  is  too  late  to  raise  such  a 
question  after  verdict,  unless  it  clearly  appears  that  the  rights 
of  the  defendant  were  prejudiced  thereby.^ 

§  218.   Election  of  Counts. 

It  is  within  the  discretion  of  the  trial  court  to  compel  an  election 
on  the  part  of  the  government  when  it  appears  from  the  indict- 
ment or  from  the  evidence  that  not  to  do  so  will  embarrass  the 
accused  in  his  defense.^  Where  the  same  evidence  is  applicable 
to  all  the  counts,  the  trial  judge  may  refuse  to  order  an  election 
of  counts.^  It  is  in  the  discretion  of  the  court  on  motion  by  the 
defendant,  to  compel  the  prosecutor  to  choose  any  one  of  the 
offenses  charged  in  the  indictment  and  proceed  against  the  accused 
only  on  that  offense.     But  such  an  objection,  if  not  made  until 

§  217.   »  Revised   Statute    §  1025.  » Connors   v.    United   States,    158 

2  Baskin    v.    United    States,    209      U.  S.  408,  39  L.  ed.  1033,  15  S.  C. 


Fed.  740,  126  C.  C.  A.  464  (7th  Cir.) 
Connors  v.  United  States,  158  U.  S 
408,  39  L.  ed.  1033,  15  S.  C.  951 
Dunbar  v.  United  States,  156  U.  S 
185,  39  L.  ed.  390,   15  S.  C.  325 


951 ;  United  States  v.  Norton, 
188  Fed.  256;  Morgan  v.  United 
States,  148  Fed.  189,  78  C.  C.  A. 
323  (8th  Cir.),  Affirmed  203  U.  S. 
595,  51  L.  ed.  333,  27  S.  C.  784. 


United   States   v.    Rhodes,    30    Fed.  §  218.    '  Pointer  v.  United  States, 

431 ;    Hume  v.   United   States,    118  151  U.  S.  396,  38  L.  ed.  208,  14  S.  C. 

Fed.  689,  55  C.  C.  A.  407  (5th  Cir.),  410;    Sidebotham  v.   United  States, 

Affirmed   189  U.   S.   510,   47  L.  ed.  253  Fed.  417  (C.  C.  A.  9th  Cir.). 
923,  23  S.  C.  850 ;    Brown  v.  United  ^  McGregor  v.  United  States,  134 

States,  143  Fed.  60,  74  C.  C.  A.  214  Fed.  187,  69  C.  C.  A.  477  (4th  Cir.) ; 

(8th  Cir.),  Affirmed   202   U.  S.  620,  Ilartman  v.  United  States,  168  Fed. 

50  L.  ed.  1174,  26  S.  C.  765;   United  30,  94  C.  C.  A.  124  (6th  Cir.). 
States  V.  Malloy,  31  Fed.  19. 
180 


Chap.  XXII]  SEPARATE   TRIALS  [§  219 

after  the  verdict,  would  not  justify  an  arrest  of  judgment,  and  is 
not  available  on  writ  of  error  unless  it  appears  that  the  substantial 
rights  of  the  accused  were  prejudiced  by  the  refusal  of  the  court 
to  require  a  more  restricted  or  specific  statement  of  the  particular 
mode  in  which  the  offense  charged  was  committed.^  However,  if 
it  should  appear  that  the  offense  was  several  and  not  joint,  or  if  it 
should  appear  at  the  conclusion  of  the  evidence  that  the  defendants 
were  connected  together  as  to  some  of  the  counts  and  not  as  to 
others,  it  is  the  duty  of  the  Court  to  put  the  prosecution  upon  its 
election  and  to  strike  out  such  evidence  given  upon  the  counts 
in  which  no  confederation  was  established,  for  it  is  well  settled 
that  upon  the  trial  of  a  party  for  one  offense  growing  out  of  a 
specific  transaction,  you  cannot  prove  a  similar  substantive  offense 
founded  upon  another  and  separate  transaction,  but  in  such  case 
the  prosecution  will  be  put  to  its  election.^ 

§  219.   Separate  Trials. 

Where  two  or  more  persons  are  jointly  charged  in  the  same 
indictment  with  the  same  offense,  such  persons  have  not  a  positive 
right  to  be  tried  separately,  but  a  separate  trial  may  be  granted 
by  the  court  in  its  discretion.^  The  discretion  to  be  exercised 
bj^the  court  must  not  be  arbitrary;  it  must  be  fair  and  sound, 
and  the  ruling  of  the  court  is  subject  to  review  in  an  appellate 
tribunal,^  and  when  the  parties  have  been  improperly  joined,  the 
judgment  will  be  reversed.^  -  A  separate  trial  may  be  had  to  try 

« United    States    v.    Norton,    188  States,  163  U.  S.  662,  41  L.  ed.  300, 

Fed.  256 ;    Connors  v.  United  States,  16  S.  C.  1192 ;  Wood  v.  United  States, 

158  U.  S.  408,  39  L.  ed.    1033,    15  204  Fed.  55,  122  C.  C.  A.  369  (4th 

S.  C.  951 ;    Pooler  v.  United  States,  Cir.) ;  Richards  v.  United  States,  175 

127  Fed.  509,  62  C.  C.  A.  307   (1st  Fed.  911,  99  C.  C.  A.  401  (8th  Cir.) ; 

Cir.) ;      Morgan    v.    United     States,  Cochran  v.  United  States,   147  Fed. 

148  Fed.  189,  78   C.  C.  A.  323  (8th  206,   77   C.   C.   A.   432    (8th   Cir.) ; 

Cir.),  Affirmed  203  U.  S.  595,  51  L.  Heike  v.   United  States,   227   U.   S. 

ed.  333,  27  S.  C.  784 ;  Evans  v.  United  131,  57  L.  ed.  450,  33  S.  C.  226. 

States,  153  U.  S.584,  38  L.  ed.  830,  14  ^  ivrause    v.    United    States,    147 

S.  C.  934 ;  Crain  v.  United  States,  162  Fed.  442,  78  C.  C.  A.  642  (8th  Cir.) ; 

U.  S.  625,  40  L.  ed.  1097,  16  S.  C.  952.  Heike  v.   United  States,   227   U.   S. 

'  Baker  v.  People,  105  111.  452.  131,  57  L.  ed.  450,  33  S.  C.  226. 

§  219.   ^  Oppenheimer    v.    United  '  Williams  v.   United  States,    168 

States,  241  Fed.  625,  154  C.  C.  A.  U.  S.  382,  42  L.  ed.  509,  18  S.  C.  92; 

383    (2d   Cir.);     Talbott   v.   United  United  States  v.  Dietrich,  126  Fed.  664. 

States,  208  Fed.  144 ;   Ball  v.  United  And  see  §  180,  supra. 

181 


§  219]  ARRAIGNMENT  AND   PLEA  [Chap,  XXII 

the  issue  as  to  whether  the  accused  is  sufficiently  sane  to  consult 
with  counsel  regarding  a  defense.^ 

§  220.   Accepting  and  Withdrawing  Pleas  —  Plea  of  Guilty. 

Courts  should  be  very  reluctant  to  accept  pleas  of  guilt  and  it  is 
their  duty  to  advise  the  prisoner  to  retract  it  and  plead  not  guilty.^ 
Once  the  plea  of  guilty  is  entered,  the  prisoner  being  warned  of  the 
consequences,  permission  to  withdraw  that  plea  and  substitute 
one  of  not  guilty  is  within  the  sound  discretion  of  the  court,  and 
being  a  matter  of  judicial  discretion,  relief  will  not  be  granted  on 
error  except  where  it  is  clearly  an  abuse  of  discretion.^  When,  by 
permission  of  the  court,  the  plea  of  guilty  is  withdrawn,  and  a  plea 
of  not  guilty  is  entered,  the  defendant  stands  in  the  same  position 
as  if  he  had  never  pleaded  guilty  before  and  his  plea  of  guilty 
cannot  be  introduced  in  evidence  against  him  upon  his  trial.^ 

§  221.   Withdrawing  Plea  of  Not  GuUty. 

It  is  also  within  the  discretion  of  the  trial  court  to  allow  the 
defendant  to  withdraw  his  plea  of  not  guilty  and  file  a  demurrer  to 
the  indictment.^ 

§  222.  Plea  of  Nolo  Contendere. 

The  plea  of  nolo  contendere  is  a  declaration  on  the  part  of  the 
defendant  that  he  will  not  contend  with  the  prosecution.^  Under 
the  common  law  rule,  which  governs  in  our  Federal  Courts,  the 
plea  of  nolo  contendere  was  in  the  nature  of  a  motion  to  submit 
to  a  small  fine  and  was  taken  only  in  cases  of  slight  misdemeanors.^ 
Hence,  imprisonment  cannot  be  imposed  upon  a  plea  of  nolo 
contendere.^    The  plea  is  in  the  nature  of  a  compromise  between 

*  United   States   v.   Chisolm,    149  '  Heim  v.  United  States,  47  App. 

Fed.  284 ;    Ex  parte  Charlton,   185  (D.  C.)  485. 

Fed.  880.  §  221.   »  Phillips  v.  United  States, 

§  220.   1  1  Bl.  Comm.  330,  Chap-  201  Fed.  259  (C.  C.  A.  Sth  Cir.). 

ter  25.  §  222.   i  Hale's  Pleas  of  the  Crown, 

2  United    States    v.    Bayaud,    21  Vol.  II,  c.  29,  p.  225. 

Blatch.  (U.  S.  Cir.  Ct.)  217 ;  United  >  Queen  v.  Templeman,  1  Salkeld 

States    V.    London,    176    Fed.    97G;  (English    Reports),    55;     Tucker   v. 

United    States   v.    Lewis,    192    Fed.  United   States,    196   Fed.    260,    116 

633 ;  Waller  v.  United  States,  179  Fed.  C.  C.  A.  62  (7th  Cir.). 

810 ;  United  States  v.  Billinp;sley,  249  »  Tucker    v.    United    States,    196 

Fed.  331,  161  C.  C.  A.  339  (9th  Cir.).  Fed.  260,  116  C.  C.  A.  62  (7th  Cir.). 

182 


Chap.  XXII]  DEATH    OF   THE   ACCUSED  [§  224 

the  government  and  the  defendant.  It  is  not  a  plea  as  of  right 
and  can  only  be  entered  with  the  consent  of  the  United  States 
Attorney  and  the  court."^  When  accepted  by  the  prosecuting 
attorney  and  court,  it  becomes  an  implied  confession  of  guilt; 
and  for  the  purposes  of  the  case  only  is  equivalent  to  a  plea  of 
guilty;  but  distinguishable  from  such  plea  in  that  it  cannot  be 
used  against  the  defendant  as  an  admission  in  any  civil  suit  for 
the  same  act.^  There  is  no  difference  in  legal  effect  between  the 
plea  of  nolo  contendere  and  the  plea  of  guilty  with  regard  to  all 
proceedings  in  the  indictment.^  Although  the  plea  of  nolo 
contendere  is  considered  as  an  implied  confession  of  guilt,  it  must 
be  kept  in  mind  that  cases  often  arise  where  an  accused  person 
might  find  himself  without  witnesses  to  establish  his  innocence 
because  of  their  death,  absence  or  other  causes.^ 

§  223.  An  Escaped  Defendant  Has  No  Standing  in  Court. 

An  escaped  defendant,  not  being  within  the  control  of  the 
court,  either  actually  or  constructively,  has  no  standing  in  court 
for  any  purpose  nor  can  he  sue  out  a  writ  of  error  until  he  surrenders 
himself  to  the  proper  authorities.^ 

§  224.  Death  of  the  Accused  —  Abatement  of  Crime. 

Upon  the  death  of  a  defendant  convicted  of  a  crime  in  the  Fed- 
eral Court,  the  penalty  is  abated  with  death.  In  the  case  of  sen- 
tence to  corporal  punishment  this  is  self-evident.  It  also  holds 
in  cases  of  fines.^  The  reason,  as  explained  by  Judge  Holt,^  is 
that  upon  the  death  of  the  accused,  there  is  no  justice  in  punishing 
his  family  (who  would  suffer  the  loss  of  the  fine)  for  his  offense. 

« Tucker  v.  United  States,  suwa.      United  States,   94  U.  S.  97,  24  L. 

*  Tucker  v.  United  States,  196  ed.  32 ;  Bohanan  v.  Nebraska,  125 
Fed.  262,  116  C.  C.  A.  62  (7th  Cir.).      U.  S.  692,  31   L.  ed.   854,   8  S.  C. 

"United    States    v.    Hartwell,    26  1390. 
Fed.     Cas.     196,     199;     Tucker    v.  §  224.  i  United  States  t;.  Pomeroy, 

United  States,  supra.  152  Fed.  279 ;  Dyar  v.  United  States, 

•  Doughty  V.  De  Amared,  46  Atl.  186  Fed.  614,  108  C.  C.  A.  478 
838.  (5th  Cir.). 

§  223.   1  United     States     ;;.     Bil-  -  United  States  v.  Fomeroy,   152 

lingsley,    242    Fed.    330 ;     Smith   v.      Fed.  279. 


183 


CHAPTER  XXIII 
FORMER  JEOPARDY 

§  225.  Constitutional  Provision. 

§  226.  Method  of  Pleading  Former  Jeopardy. 

§227.  Evidence. 

§  228.  Relief  by  Habeas  Corpus. 

§  229.  Extent  of  Review  by  Habeas  Corpus. 

§  230.  Offenses  in  Two  Forms. 

§  231.  When  Jeopardy  Attaches  —  After  Swearing  Jury. 

§232.  After  Verdict. 

§  233.  Effect  of  Nolle  Prosequi. 

§234.  After  Judgment. 

§  235.  Test  of  Identity  of  Offenses. 

§  236.  When  a  New  Event  Supervenes. 

§  237.  Instances  Where  the  Plea  of  Jeopardy  Was  Not  Sustained. 

§238.  Contempt. 

§  239.  Excessive  Sentence. 

§  240.  Resentence. 

§  241.  Deferring  Sentence. 

§  242.  Suspending  Sentence  —  Power  of  Court. 

§  243.  When  First  Judgment  Set  Aside  on  Motion  of  Defendant. 

§  225.   Constitutional  Provision. 

The  Fifth  Amendment  to  the  Constitution  of  the  United  States, 
among  other  things,  provides :  "  Nor  shall  any  person  be  subject 
for  the  same  offence  to  be  twice  put  in  jeopardy  of  life  or 
limb.  .  .  ." 

§  226.   Method  of  Pleading  Former  Jeopardy. 
The  orderly  method  is  by  a  plea  in  bar.^     But  pleas  of  former 
jeopardy  are  also  entertained  by  motion  supported  by  affidavits 

§226.    1  United  States  v.  Wilson,       662,  41  L.  cd.  300,   16  S.  C.  1192; 
7  Pet.    (U.   S.)    150,  8  L.  cd.   640;      Ex  parte  Glenn,  111  Fed.  257. 
United    States    v.    Ball,    163    U.    S. 

184 


Chap.  XXIII]      EXTENT   OF  REVIEW   BY   HABEAS    CORPUS  [§  229 

without  formal  pleading.^  The  plea  of  former  jeopardy  is  not 
inconsistent  with  the  plea  of  not  guilty.^  The  plea  of  puis  darrein 
continuance  and  that  of  former  jeopardy  are  not  inconsistent  with 
each  other  and  they  may  stand  together.  It  is,  however,  necessary 
that  the  issue  under  the  first  plea  should  be  disposed  of  under 
the  plea  of  not  guilty.'* 

§  227.   Evidence. 

The  nature  of  the  offense  and  the  issues  tried  on  the  prior  con- 
viction or  acquittal  may  be  proved  by  parol,  where  the  record  in 
the  case  does  not  disclose  all  the  facts.^  In  the  case  of  Hans  Niel- 
sen, Petitioner,^  the  court  said :  "  It  is  true  that,  in  the  case  of 
Snow,  we  laid  emphasis  on  the  fact  that  the  double  conviction  for 
the  same  offense  appeared  on  the  face  of  the  judgment ;  but  if  it 
appears  in  the  indictment,  or  anywhere  else  in  the  record  (of  which 
judgment  is  only  a  part),  it  is  sufficient." 

§  228.  Relief  by  Habeas  Corpus. 

The  Supreme  Court  of  the  United  States  has  entertained  juris- 
diction on  a  petition  for  habeas  corpus  on  the  ground  of  former 
jeopardy.^ 

§  229.  Extent  of  Review  by  Habeas  Corpus. 

In  Ex  parte  Parks,^  the  Supreme  Court  said :  "  The  writ  ought 
not  to  be  issued,  or,  if  issued,  the  prisoner  should  at  once  be 
remanded,  if  the  court  below  had  jurisdiction  of  the  offense, 
and  did  not  act  beyond  the  powers  conferred  upon  it.  The  court 
will  look  into  the  proceedings  so  far  as  to  determine  this  question. 
If  it  finds  that  the  court  below  has  transcended  its  powers,  it 
will  grant  the  writ  and  discharge  the  prisoner,  even  after  judg- 

2  Peter  v.  United  States,  94  Fed.  383 ;    Durland  v.  United  States,  161 

126  (C.  C.  A.  9th  Cir.).  U.  S.  306,  40  L.  ed.  709,  16  S.  C.  508. 

» Thompson     v.     United     States,  *  131   U.   S.    176,    183,   33   L.   ed. 

155  U.  S.  271,  39  L.  ed.  146,  15  S.  C.  118,  9  S.  C.  672,  674. 

73.  §  228.   1  Ex    parte    Nielsen,    131 

♦Thompson     v.     United     States,  U.  S.  176,  33  L.  ed.  118,  9  S.  C.  672, 

supra.  674. 

§  227.   1  Bartell  v.  United  States,  §  229.   i  93  U.  S.  18,  23,  23  L.  ed. 

227  U.  S.  427,  57  L.  ed.  583,  33  S.  C.  787. 

185 


§  229]  FORMER    JEOPARDY  [Chap.  XXIII 

ment."  The  Fifth  Amendment  was  not  intended  to  do  away  with 
what  in  the  civil  law  is  a  fundamental  principle  of  justice,  in  order, 
when  a  man  once  has  been  acquitted  on  the  merits,  to  enable  the 
government  to  prosecute  him  a  second  time.^  The  clause  applies 
to  misdemeanors  as  well  as  to  treason  and  felony.^  This  amend- 
ment is  not  binding  on  the  states,'*  although  the  question  was 
regarded  as  still  open  in  Shelvin  Carpenter  Co.  v.  Minnesota.^ 
Necessarily,  there  must  be  .a  first  jeopardy  before  there  can  be  a 
second,  and  only  when  a  second  is  sought  is  the  constitutional 
immunity  from  double  punishment  threatened  to  be  taken  away. 

§  230.   Offenses  in  Two  Forms. 

Where  a  person  commits  two  crimes  by  doing  the  same  act, 
one  against  the  State  laws  and  the  other  against  those  of  the  United 
States,  the  conviction  or  acquittal  of  the  one  crime  in  one  court 
will  be  no  bar  in  the  other .^ 

§  231.  When  Jeopardy  Attaches  —  After  Swearing  Jury. 

The  weight  of  authority  is  to  the  effect  that  the  moment  the 
jury  is  sworn  and  is  dismissed  without  the  consent  of  the  defendant 
and  without  necessity,  the  defendant  cannot  be  again  placed  on 
trial  before  another  jury  for  the  same  offense.^  The  rule  in  general 
is  that  when  an  indictment  is  sufficient  in  substance  and  form  and  a 
jury  has  been  impaneled  to  try  the  defendant,  it  cannot  be  dis- 
charged without  the  consent  of  the  defendant.     If  so  discharged 

2  United   States   v.   Oppenheimer,  14  How.  (U.  S.)  12,  14  L.  ed.  213; 

242  U.  S.  85,  61  L.  ed.  161,  37  S.  C.  68.  United  States  v.  Barnhart,  22  Fed. 

^  Berkowitz  v.  United  States,   93  285 ;    United  States  v.  Coombs,   12 

Fed.  452,  35  C.  C.  A.  379  (3d  Cir.).  Peters   (U.   S.),  72,  9  L.  ed.   1004; 

*  Twining    v.    New    Jersey,    211  United  States  v.  Mason,  213  U.  S. 

U.  S.  78,  53  L.  ed.  97,  29  S.  C.  14;  115,   53  L.  ed.  725,  29  S.  C.  480; 

In  re  Boggs,  45  Fed.  475 ;    United  Coleman  v.  Tennessee,  97  U.  S.  509, 

States    V.    Barnhart,    22    Fed.    285;  24  L.  ed.  1118. 

Fox  V.  Ohio,   5   IIow.    (U.   S.)   410,  §231.   'United    States    v.    Ball, 

12  L.  ed.  213 ;    Moore  v.  Illinois,  14  163  U.  S.  662,  41  L.  ed.  300,  16  S. 

How.  (U.  S.)  12,  14  L.  ed.  306.  C.  1192;    Ex  parte  Glenn,  111  Fed. 

'^218  U.  S.  57,  64  L.  ed.  930,  30  257;   Ex  parte  Ulrich,  42  Fed.  587; 

S.  C.  663.  United  States  v.  Shoemaker,  2  Mc- 

§  230.   1  Grafton  v.  United  States,  Lean,  114,  27   Fed.  Cas.  No.    1067. 

206  U.  S.  333,  51  L.  ed.  1084,  27  S.  United  States  v.  Watson,  3  Ben.  1 ; 

C.  749 ;   Fox  v.  Ohio,  5  How.  (U.  S.)  United   States   v.    Perez,    9   Wheat. 

410,  12  L.  ed.  213 ;   Moore  v.  Illinois,  (U.  S.)  579,  6  L.  ed.  165. 

18G 


Chap.  XXIII]  AFTER  VERDICT  [§  232 

without  his  consent  he  may  plead  former  jeopardy.^  But  an 
acquittal  before  a  court  having  no  jurisdiction  is  like  all  proceed- 
ings of  such  a  case,  void,  and  no  bar  to  a  second  indictment.^ 
And  if  the  facts  averred  in  the  second  indictment  are  sufficient, 
of  themselves,  to  constitute  a  crime,  of  which  the  first  court  has 
not  jurisdiction,  neither  conviction  nor  acquittal  on  the  first 
indictment  will  be  a  bar  to  the  second."*  But  it  was  likewise 
held  that  courts  of  justice  are  invested  with  authority  to  dis- 
charge a  jury  from  giving  any  verdict,  whenever  in  their  opinion, 
taking  all  the  circumstances  into  consideration,  there  is  a  manifest 
necessity  for  the  act,  or  the  ends  of  public  justice  would  otherwise 
be  defeated,  and  to  order  a  trial  by  another  jury ;  and  the  defendant 
is  not  thereby  twice  put  in  jeopardy  within  the  meaning  of  the 
Fifth  Amendment  to  the  Constitution  of  the  United  States.^ 
Thus,  for  instance,  where  after  a  jury  has  been  sworn  it  was 
discovered  that  certain  jurors  had  preconceived  notions  about 
the  case  and  were  so  biased  that  they  would  not  render  a  fair  and 
impartial  verdict  or  that  outside  influences  have  reached  the  jury, 
the  court  may  discharge  the  jury  and  place  the  defendant  on  trial 
before  another  jury,  and  such  discharge  will  not  operate  as  a 
"former  jeopardy."^ 

§  232.  After  Verdict. 

It  is  not  necessary  in  order  to  claim  former  jeopardy,  that 
there  should  have  been  a  judgment  entered  upon  the  plea.  The 
second  jeopardy  is  not  against  the  peril  of  a  second  jeopardy  but 
against  being  tried  again  for  the  same  offense.^     And  the  rule  is 

^Hilando   v.  Commonwealth,  111  United  States,  144  U.  S.  263,  36  L. 

Pa.  State,  1.  ed.  429,  441,  12  S.  C.  617;  Simmons 

^Kepner    v.    United    States,    195  v.  United  States,  142  U.  S.  148,  35 

U.  S.  100,  129,  49  L.  ed.  114,  124,  L.  ed.  968,  12  S.  C.  171. 
24  S.  C.  797.  6  Simmons  v.   United  States,    142 

*  United  States  v.  Houston,  4  U.  S.  148,  35  L.  ed.  968,  12  S.  C.  171. 
Cranch   (C.   C),  261,   26  Fed.  Cas.  §  232.   i  United  States  v.  Sanges, 

379.  144  U.  S.  310,  36  L.  ed.  445,  12  S. 

5  Lovato  V.  New  Mexico,  242  U.  C.   609 ;     Kepner   v.   United   States, 

S.  199,  61  L.  ed.  244,  37  S.  C.  107;  195  U.  S.  100,  129,  49  L.  ed.  114, 

Thompson     v.    United    States,    155  24   S.    C.    797 ;     Krug   v.    Missouri, 

U.  S.  271,  39  L.  ed.  146,  15  S.  C.  73;  107  U.  S.  221,  27  L.  ed.  506,  28  S. 

United    States    v.    Perez,    9    Wheat.  C.  443;    Ex  parte   Lange,  18   Wall, 

(U.  S.)  578,  6  L.  ed:  165 ;   Logan  v.  (U.  S.)  163,  21  L.  ed.  872. 

187 


§  232]  FORMER  JEOPARDY  [Chap.  XXIIl 

the  same  although  the  verdict  of  acquittal  was  based  on  a  defective 
indictment  provided  the  court  had  jurisdiction  over  the  subject 
matter  and  parties.^  Where  the  verdict  of  a  jury  finds  the  defend- 
ant guilty  on  some  of  the  counts  of  the  indictment  and  is  silent 
as  to  others  and  the  jury  is  discharged  without  the  consent  of  the 
accused,  any  further  attempt  to  try  the  defendant  again  upon 
such  counts  amounts  to  placing  the  defendant  twice  in  jeopardy 
in  violation  of  the  Constitution  of  the  United  States.^ 

§  233.     Effect  of  Nolle  Prosequi. 

A  Nolle  Prosequi  as  to  some  of  the  counts  in  an  indictment  is 
not  equivalent  to  an  acquittal,  but  leaves  the  indictment  in  a 
position,  as  if  such  counts  were  never  contained  in  the  indictment.^ 

§  234.  After  Judgment. 

When  a  court  has  imposed  a  fine  and  imprisonment  where  the 
statute  only  conferred  power  to  punish  by  fine  or  imprisonment 
and  the  fine  has  been  -paid,  it  cannot  even,  during  the  same  term, 
modify  the  judgment  by  imposing  imprisonment  instead  of  the 
former  sentence.^  And  a  person  convicted  of  a  criminal  offense 
and  sentenced  to  one  punishment,  to  which  he  has  been  subjected, 
cannot  properly  thereafter  be  sentenced  on  the  same  conviction 
to  another  and  different  punishment.^  Thus,  where  a  defendant 
at  the  same  time,  to  the  same  person  and  as  a  single  act,  issued 
falsely  six  money  orders  and  has  pleaded  guilty  to  the  offense  of 
issuing  a  single  money  order,  which  was  part  of  the  same  trans- 
action, he  cannot  be  placed  on  trial  again  for  issuing  the  other 
five  orders.^  On  the  other  hand  it  has  been  held  that  when  the 
subsequent  indictment  is  for  a  distinct  offense  from  that  on  which 

2  United   States   v.   Ball,    163   U.  §  233.   i  Dealey  v.  United  States, 

S.  662,  666,  41  L.  ed.  300,  16  S.  C.  152  U.  S.  539,  38  L.  ed.  545,  14  S. 

1192;   Simpson  v.  United  States,  229  C.  680. 

Fed.  940,  944  (C.  C.  A.  9th  Cir.) ;  §  234.    i  Ex  parte  Lange,  18  Wall. 

Kepner  v.  United  States,  195  U.  S.  (U.  S.)  163,  176,  21  L.  ed.  872 ;    Ex 

100,  49  L.  ed.   114,  24  S.   C.  797;  parte  Parks,  93  U.  S.  18,  23  L.  ed. 

United  States  v.  Sanges,   144  U.  S.  787 ;   Moss  v.  United  States,  23  App. 

310,  36  L.  ed.  445,  12  S.  C.  609.  (D.  C.)  475. 

'  Silvester  v.   United  States,    170  ^  Blackman  v.  United  States,  250 

U.  S.  262,  42  L.  ed.  1029,  18  S.  C.  Fed.  449  (C.  C.  A.  5th  Cir.). 

580 ;     Dolan  v.   United   States,    133  '  United    States    v.    Komic,    194 

Fed;  440,  69  C.  C.  A.  274  (8th  Cir.).  Fed.  567. 

188 


Chap.  XXIII]       TEST  of  identity  of  offenses  [§  235 

the  verdict  in  the  first  trial  was  found,  the  plea  will  not  be  sus- 
tained. The  counterfeiting  of  notes  at  different  times,  though 
all  apparently  printed  from  the  same  plate,  are  distinct  offenses. 
And  on  the  indictment  for  passing  a  counterfeit  note,  the  accused 
cannot  plead  that  the  note  had  been  previously  given  in  evidence 
on  the  trial  on  a  former  indictment  against  him  for  passing  another 
counterfeit  note.^  An  acquittal  by  military  court-martial  is  a  bar 
to  another  prosecution  for  the  same  crime  in  any  other  court. ^ 
A  judgment  for  the  defendant  upon  the  ground  that  the  prose- 
cution is  barred  by  the  statute  of  limitations  goes  to  his  liability 
as  a  matter  of  substantive  law  and  one  judgment  that  he  is  free 
as  a  matter  of  substantive  law  is  as  good  as  another.  He,  there- 
fore, cannot  be  tried  again.^  A  judgment  of  acquittal  being  con- 
clusive proof  of  innocence  in  favor  of  the  person  acquitted  is  res 
adjudicata  and  a  bar  to  a  subsequent  suit  in  rem  as  to  the  same 
act  or  fact.^  But  when  a  defendant  has  been  punished  for  the 
commission  of  a  criminal  act,  though  he  cannot  again  be  put  in 
jeopardy  for  the  same  offense  by  an  action  in  rem,  that,  however, 
does  not  bar  the  United  States  from  seizing  the  res  when  it  is 
unlawful  for  it  to  be  harbored  in  this  country.^ 

§  235.  Test  of  Identity  of  Offenses. 

A  plea  of  former  acquittal  must  be  upon  a  prosecution  for  the 
identical  offense.^  The  test  of  identity  of  offenses  is  whether  the 
same  evidence  is  required  to  sustain  them ;  if  not,  then  the  fact 
that  both  charges  relate  to  and  grow  out  of  one  transaction  does 
not  make  a  single  offense  ivhere  two  are  defined  hy  the  statutes.^ 
But  the  test  is  not  whether  the  criminal  intent  is  one  and  the  same 

*  United  States  v.  Randenbush,  §  235.  ^  United  States  v.  Houston, 
8  Pet.  (U.  S.)  288,  8  L.  ed.  948;  4  Cranch  (C.  C),  261,  26  Fed.  Cas. 
Bliss  V.  United  States,  105  Fed.  379;  Burton  v.  United  States,  202 
508,  44  C.  C.  A.  324  (5th  Cir.).  U.  S.  344,  50  L.  ed.  1057,  26  S.  C.  688. 

"Grafton    v.    United    States,    206  2  Carter  v.    McClaughry,    183   U. 

U.  S.  333,  51  L.  ed.  1084,  27  S.  C.  749.  S.  365,  46  L.  ed.  236,  22  S.  C.  181 ; 

*  United  States  v.  Oppenheimer,  Burton  v.  United  States,  202  U.  S. 
242  U.  S.  85,  61  L.  ed.  161,  37  S.  C.  344,  377,  50  L.  ed.  1057,  1069,  26 
68.  S.  C.  688,  6  Ann.  Cas.  362 ;  Gavieres 

7  Coffey  t;.  United  States,  116  U.  1;.  United  States,  220  U.  S.  338,  55 
S.  436,  29  L.  ed.  684,  6  S.  C.  437.  L.  ed.  489,  31  S.  C.  421 ;   Morgan  v. 

8  In  re  Food  Conservation  Act,  Devine,  237  U.  S.  632,  59  L.  ed.  1153, 
254  Fed.  893.               ^  35  S.  C.  712. 

189 


§  235]  FORMER   JEOPARDY  [Chap.  XXIII 

and  inspiring  the  whole  transaction,  but  whether  separate  acts 
have  been  committed  with  the  requisite  criminal  intent  and  are 
such  as  are  made  punishable  by  the  act  of  Congress.^  In  the  case 
of  Kepner  n.  United  States/  in  discussing  a  plea  of  former  jeopardy, 
the  Court  cites  extensively  with  approval  the  case  of  Wemyss 
V.  Hopkins/  holding  that,  while  a  defendant,  where  the  offense 
grows  out  of  the  same  state  of  facts,  may  be  prosecuted  under 
either  of  two  statutes  and  might  have  been  punished  under 
either  of  such  statutes,  nevertheless  a  conviction  under  one  is  a 
bar  to  the  further  prosecution  under  the  other.  It  has  been  said 
that  a  person  who  has  been  convicted  of  a  crime  having  various 
incidents  included  in  it  cannot  be  tried  a  second  time  for  one  of 
those  incidents.®  For  this  reason  a  conviction  of  theft  of  a 
pocketbook  was  held  to  be  a  conviction  of  theft  of  all  its  contents 
belonging  to  its  owner.'^  And  in  Ex  parte  Lange,^  the  Supreme 
Court  of  the  United  States,  speaking  through  Mr.  Justice  Miller, 
approved  the  case  of  Grenshaw  v.  Tenn  ^  where  it  was  held  by  the 
Supreme  Court  of  that  State  that  the  common  law  principle  went 
still  further,  namely,  that  an  indictment,  conviction  and  punish- 
ment of  a  case  of  felony,  not  capital,  committed,  was  a  bar  to  a 
prosecution  for  all  other  felonies  not  capital  committed  before  such 
conviction,  judgment  and  execution.  The  proper  tests  as  to 
whether  the  plea  of  a  former  conviction  or  a  former  acquittal  is 
good  or  bad  is  whether  the  defendants  could,  under  the  earlier 
indictment,  have  been  convicted  of  the  offense  embraced  in  the 
later  one,  and  whether  the  evidence  necessary  to  support  the  later 
indictment  has  been  sufficient  to  produce  a  legal  conviction  upon 
the  earlier  one.^° 

§  236.  When  a  New  Event  Supervenes. 

The  great  weight  of  authority  is  in  support  of  the  principle 
that  when,  after  the  first  prosecution,  a  new  fact  supervenes,  for 

«  Morgan   v.    Devine,    237   U.    S.  «  Ex  parte  Nielsen,  131  U.  S.  176, 

632,  59  L.  ed.  1153,  35  S.  C.  712;  33  L.  ed.  118,  9  S.  C.  672. 

Ebcrling  v.  Morgan,  237  U.  S.  625,  59  '  United    States    v.    Negro    John, 

L.  ed.  1151,  35  S.  C.  710.  4  Cranch  (C.  C),  336. 

M95  U.  S.   100,  49  L.  ed.   114,  » 18  Wall.  (U.  S.)  163,21  L.ed.  872. 

24  S.  C.  797.  9 1  Mart.  &  Yerg.  122. 

»  L.  R.  10  Q.  B.  378.  '">  United     States     v.    Flecks,    2 

Ben.  (U.  S.)  456. 

190 


Chap.  XXIII]  INSTANCES  [§  237 

which  the  accused  is  responsible,  which  changes  the  character  of 
the  offense,  and  together  with  the  facts  existing  at  the  time  con- 
stitutes a  new  and  distinct  crime,  an  acquittal  or  conviction  of 
the  first  offense  is  not  a  bar  to  an  indictment  for  the  other  distinct 
crime.  So,  one  who  has  been  convicted  and  sentenced  on  a  charge 
of  assault  and  battery  may  be  subsequently  tried  and  convicted 
of  murder  if  the  person  assaulted  dies  subsequent  to  the  first 
conviction.^ 

§  237.  Instances  Where  the  Plea  of  Jeopardy  Was  Not  Sus- 
tained. 

An  acquittal  on  an  indictment  for  forging  an  order  with  intent  to 
defraud  John  Lang  is  held  no  bar  to  an  indictment  for  forging  the 
same  order  with  intent  to  defraud  William  Lang.^  In  Burton 
V.  United  States,^  the  Court  held  that  the  plea  of  former  jeopardy 
was  not  maintainable  where  the  defendant  at  the  former  trial  was 
acquitted  of  receiving  a  bribe  from  one  W.  D.  Mahoney,  whereas 
in  the  later  case,  he  was  convicted  for  taking  a  bribe  from  the 
Realto  Grain  &  Securities  Company;  that  the  charges  were 
not  identical  and  that  each  charge  is  supportable  by  different 
evidence  and  that  acquittal  or  conviction  of  one  is  not  conclusive 
of  the  other.  An  acquittal  of  a  conspiracy  to  induce  a  railroad 
company  to  give  rebates  is  not  a  bar  to  a  prosecution  for  inducing 
shippers  to  receive  them,  notwithstanding  the  similarity  of  the 
evidence.^  The  acquittal  of  a  defendant  who  is  a  stockholder  or 
oflBcer  of  a  corporation  on  a  charge  of  defrauding  the  United 
States  of  a  tax  was  held  not  to  be  a  bar  to  a  subsequent  proceeding 
for  the  forfeiture  of  the  goods  upon  which  the  tax  had  to  be  paid.^ 
The  acquittal  of  the  defendant  upon  counts  charging  the  aiding 
and  abetting  others  to  import  opium  is  not  a  bar  to  a  conspiracy 
indictment  for  importing  the  same  opium. ^  The  conviction  for  a 
conspiracy  to  transport  dynamite  over  passenger  trains  was  held 

§  236.   1  Hopkins  v.  United  States,  Fed.  897,  84  C.  C.  A.  167  (8th  Cir.), 

4  App.  Cas.  (D.  C.)  430.  17  L.  R.  A.  (n.  s.)  720. 

§  237.    '  United  States  v.  Book,  2  *  United  States  v.  Manufacturing 

Cranch  (C.  C),  294.  Apparatus,  240  Fed.  235. 

2  202  U.  S.    344,  370,  50  L.  ed.  ^  Louie  v.  United  States,  2i8  Fed. 

1057,  26  S.  C.  688.       ^  36  (C.  C.  A.  9th  Cir.). 


2  Thomas   v.   United   States,    156 


191 


§  237]  FORMER   JEOPARDY  [Chap.  XXUl 

to  be  no  bar  for  a  prosecution  under  an  indictment  charging  the 
transportation  of  the  same  dynamite  over  passenger  trains.^ 
An  acquittal  on  a  charge  of  conspiracy  to  smuggle  in  opium  is  not 
a  bar  to  a  prosecution  for  aiding  in  and  abetting  to  smuggle  in 
the  same  opium. ^  Nor  will  an  acquittal  upon  an  indictment  for 
failure  to  pay  a  special  tax  bar  proceedings  for  perjury  in  swearing 
falsely  at  the  preliminary  examination.^  Defendants  had  been 
indicted  under  one  section  of  an  Internal  Revenue  Act  for  know- 
ingly carrying  on  the  business  of  a  distiller  on  a  certain  date 
without  having  paid  the  special  tax.  On  this  indictment  they 
were  tried  and  acquitted  on  the  ground  that  they  were  not  the 
principals  who  were  bound  to  pay  the  tax.  They  were  afterwards 
indicted  under  another  section  of  the  same  act  for  knowingly 
using  a  still  for  the  purpose  of  distilling,  in  a  certain  dwelling 
house  on  the  same  date.  The  evidence  on  the  trial  of  the  first 
indictment  showed  that  the  place  of  the  offense  charged  was  the 
same  dwelling  house.  It  was  held  that  a  plea  of  autrefois  acquit, 
founded  on  the  acquittal  under  the  first  indictment,  could  not  be 
sustained.^ 

§  238.   Contempt. 

An  act  which  is  a  contempt  of  court  and  also  a  crime  may  be 
punished  both  by  the  summary  provision  and  by  indictment,  and 
neither  will  bar  the  other.^  In  other  words,  the  provision  pro- 
tecting a  person  against  being  twice  put  in  jeopardy  for  the  same 
offense  is  no  protection  against  punishment  both  for  contempt 
and  by  indictment  for  the  same  act.  In  view  of  these  facts  and 
others,  it  is  not  to  be  wondered  that  the  Supreme  Court  has 
characterized  contempt  proceedings  as  sui  generis?' 

'  Ryan  v.  United  States,  216  Fed.  Directory  Co.  v.  United  States  Direct- 
19  (C.  C.  A.  7th  Cir.).  ory   Co.,    123    Fed.    194;     O'Neil   v. 

7  Louie    V.    United    States,     218      People,  113  111.  App.  195. 

Fed.  36  (C.  C.  A.  9th  Cir.).  ^  Merchants   Stock  &   Grain   Co. 

8  United  States  v.  Butler,  38  Fed.  v.  Board  of  Trade,  201  Fed.  20,  120 
498.  C.  C.  A.  582  (8th  Cir.) ;    O'Neal  v. 

» United  States  v.  Flecke,  2  Ben.  United  States,   190  U.  S.  36,  47  L. 

(U.  S.)  456.  cd.  945,  23  S.  C.  776 ;    Bessette  v. 

§  238.    1  Merchants  Stock  &  Grain  W.  B.  Conkoy  Co.,  194  U.  S.  324,  48 

Co.  V.  Board  of  Trade,  201  Fed.  20,  L.  ed.  997,  24  S.  C.  665. 
120  C.  C.  A.  582  (8th  Cir.) ;   Chicago 
192 


Chap.  XXIII]  DEFERRING   SENTENCE  [§241 

§  239.  Excessive  Sentence. 

A  prisoner  is  entitled  to  a  writ  of  habeas  corpus  when  he  is  held 
under  an  excessive  sentence  beyond  the  limit  prescribed  by  law, 
but  such  writ  will  lie  only  as  to  the  excess  of  the  sentence,  and  will 
not  affect  the  operation  of  so  much  of  the  judgment  for  which  the 
prisoner  could  have  been  properly  sentenced.^  The  excess  of  a 
sentence  beyond  the  jurisdiction  of  the  court  which  renders  it, 
in  a  case  in  which  it  has  ample  jurisdiction  of  the  case  and  of  the 
parties,  is  as  void  as  a  judgment  in  a  case  in  which  the  court  has 
no  jurisdiction,  and  a  prisoner  held  under  such  excess  alone  is 
entitled  to  his  relief  by  writ  of  habeas  corpus.^ 

§  240.  Resentence. 

It  is  not  double  jeopardy  to  resentence  a  prisoner  who  had  his 
first  sentence  vacated  by  writ  of  error  nor  to  retry  him  on  a  new 
indictment  after  a  prior  indictment  has  been  dismissed  at  the 
instance  of  the  defendant.^  When  the  defect  in  a  sentence  does 
not  inhere  in  the  trial  or  verdict  and  relates  only  to  the  sentence, 
and  where  the  sentence  is  attacked  in  an  application  for  habeas 
corpus,  the  court  instead  of  discharging  the  prisoner  should  return 
the  prisoner  to  the  trial  court  for  a  correction  of  the  sentence.^ 

§  241.  Deferring  Sentence. 

Where  sentence  is  postponed  from  time  to  time  unconditionally 
and  for  a  definite  period  as  an  incident  to  the  administration  of 

§  239.   1  Stoneberg  v.  Morgan,  246  209   Fed.    816,    820,    126    C.    C.    A. 

Fed.   98   (C.   C.   A.   8th  Cir.) ;    Ex  540,  544  (8th  Cir.) ;   Ex  parte  Reed, 

parte  Lange,   18  Wall.   (U.  S.)   163,  100  U.  S.  13,  25  L.  ed.  538. 
176,  178,  21  L.  ed.  872 ;    Munson  v.  §  240.    i  Bryant  v.  United  States, 

McClaughry,   198  Fed.   72,   77,   117  214   Fed.   51    (C.   C.   A.   8th  Cir.); 

C.  C.  A.  180,  185  (8th  Cir.),  42  L.  R.  Murphy   v.    Massachusetts,    177    U. 

A.   (n.  s.)  302,  and  the  cases  there  S.  155,  44  L.  ed.  711,  20  S.  C.  639; 

cited ;    O'Brien  v.  McClaughry,  209  Ball  v.  United  States,  163  U.  S.  662, 

Fed.   816,   820,    126   C.   C.   A.   540,  41  L.  ed.  300,  16  S.  C.  1192. 
547  (8th  Cir.).  2  Bryant    v.    United    States,    214 

2  Ex  parte  Lange,    18  Wall.    (U.  Fed.  51  (C.  C.  A.  8th  Cir.) ;    In  re 

S.)  163,  176,  178,  21  L.  ed.  872;  Bonner,  151  U.  S.  242,  38  L.  ed. 
Munson  v.  McClaughry,  198  Fed.  .  149,  14  S.  C.  323 ;  United  States  v. 
72,  77,  117  C.  C.  A.  180,   185  (8th    '  Carpenter,  151  Fed.  214,  81  C.  C.  A. 

Cir.),  42  L.  R.  A.  (n.  s.j  302,  and  the  194  (9th  Cir.). 
cases  cited;   O'Brien  v.  McClaughry. 

VOL.  1  —  13  193 


§241] 


FORMER    JEOPARDY 


[Chap.  XXIll 


justice,  the  court  retains  jurisdiction  to  impose  sentence  at  a 
term  after  the  trial  term  has  expired.^ 

§  242.   Suspending  Sentence  —  Power  of  Court. 

The  trial  court  does  not  possess  any  power  to  indefinitely  sus- 
pend sentence  nor  to  pardon  or  parole.  There  are  cases  holding 
that  where  a  verdict  or  plea  of  guilty  is  final,  a  court  has  no  dis- 
cretion, as  a  disciplinary  measure,  to  suspend  the  imposition  of 
sentence,  and  that  the  legal  effect  of  the  exercise  of  such  dis- 
cretion by  suspending  the  imposition  of  a  sentence  indefinitely  or 
unconditionally,  is  to  deprive  the  court  of  jurisdiction  to  impose 
sentence  at  a  later  term.  Other  cases  hold  that  such  orders 
being  illegal  are  absolutely  void,  and  that  sentence  may  be  pro- 
nounced at  any  time.^ 

§  243.  When  First  Judgment  Set  Aside  on  Motion  of  Defendant. 

The  constitutional  rights  of  a  defendant  are  not  violated  when 
put  on  trial  a  second  time  where  the  jury  failed  to  agree  at  the 
first  trial,  or  the  verdict  is  set  aside  on  motion  of  the  accused,  or 
on  a  writ  of  error  prosecuted  by  him,  or  the  indictment  was  found 
to  describe  no  offense  known  to  the  law.^ 


§  241.  1  Miner  v.  United  States, 
244  Fed.  422,  157  C.  C.  A.  48  (3d 
Cir.) ;  Ex  parte  United  States,  242 
U.  S.  27,  61  L.  ed.  129,  37  S.  C.  72. 

§  242.  ^  See  cases  pro  and  con 
collected  in  Miner  v.  United  States, 
244  Fed.  422,  157  C.  C.  A.  48  (3d 
Gir.). 

§  243.  1  United  States  v.  Ball, 
163  U.  S.  662,  41  L.  ed.  300,  16  S. 
C.  1192;    Ex  parte  Lange,  18  Wall. 


(U.  S.)  163,  21  L.'ed.  872.  But  a 
number  of  respectable  authorities 
dissent  from  that  view.  See  dissent- 
ing opinion  of  Holmes,  J.  in  Kepner 
V.  United  States,  195  U.  S.  100, 
49  L.  ed.  114,  24  S.  C.  797 ;  Woodruff 
V.  United  States,  168  Fed.  535  and 
Kring  v.  Missouri,  107  U.  S.  221, 
234,  27  L.  ed.  506,  2  S.  C.  443,  where 
the  rule  as  to  waiver  was  materially- 
relaxed. 


104 


CHAPTER  XXIV 

PARDON 

§  244.  Pleading  Pardon. 

§  245.  Pardon  Defined. 

§  246.  Distinguished  from  Reprieve  and  Amnesty. 

§  247.  Pardoning  Power. 

§  24S.  Requisites  and  Construction. 

§249.  EiTect  of  Pardon. 

§  250.  Conditional  Pardons. 

§  244.  Pleading  Pardon. 

The  court  will  take  judicial  notice  of  an  amnesty  or  a  general 
pardon  by  proclamation  of  the  President  or  an  act  of  Congress.^ 
In  all  other  cases  the  pardon  must  be  brought  to  the  notice  of  the 
court  in  some  manner,  either  by  pleading  it  on  arraignment,  or  in 
arrest  of  judgment,  or  in  bar  of  execution  of  sentence.^  The 
pardon  itself  or  a  certified  copy  is  the  best  evidence.^ 

§  245.  Pardon  Defined. 

"  A  pardon  is  an  act  of  grace,  proceeding  from  the  power  in- 
trusted with  the  execution  of  the  laws,  which  exempt  the  individual 
on  whom  it  is  bestowed  from  the  punishment  the  law  inflicts  for 
a  crime  he  has  committed."  ^  A  pardon  is  said  by  Lord  Coke, 
to  be  a  work  of  mercy,  whereby  the  King,  either  before  attainder, 
sentence  or  conviction,   or  after,  forgiveth  any  crime,   offense, 

§  244.   1  Armstrong      v.      United  §  245.   i  Marshall,  Ch.  J.  in  United 

States,  13  WaU.  (U.  S.)  154,  20  L.  ed.  States  v.  WUson,   7  Peters   (U.   S.), 

614 ;   Muir  v.  Louisville  &  N.  R.  Co.,  150,  8  L.  ed.  640 ;    Ex  parte  Wells, 

247  Fed.  888.  18  How.  (U.  S.)  307,  10  L.  ed.  421 ; 

2  United  States  v.  Wilson,  7  Peters  Knote   v.   United  States,   95   U.   S. 

(U.  S.),  150,  8  L.  ed.  640;   Ex  parte  149,  24  L.  ed.  442 ;  Burdick  v.  United 

Wells,    18   How.    (U.   S.)    307,   329,  States,  236  U.  S.  79,  59  L.  ed.  476, 

15  L.  ed.  421.  35  S.  C.  267. 


'  United  States  v.  Wilson,  supra. 


195 


§  245]  PARDON  [Chap.  XXIV 

punishment,  execution,  right,  title,  debt  or  duty,  temporal 
or  ecclesiastical.^  Pardons  are  of  particular  denominations. 
They  are  general,  special  or  particular,  conditional  or  absolute, 
statutory,  not  necessary  in  some  cases,  and  in  some  grantable  of 
course.^ 

§  246.  Distinguished  from  Reprieve  and  Amnesty. 

A  reprieve  is  a  postponement  or  stay  of  the  sentence.^  Pardon 
includes  amnesty.^  Amnesty  is  "  employed  where  pardon  is 
extended  to  whole  classes  or  communities,  instead  of  individuals. 
The  distinction  between  them  is  one  rather  of  philological  interest 
than  of  legal  importance."  ^  But  there  are  incidental  differences 
of  importance,  they  being  of  different  purposes  and  character. 
Amnesty  overlooks  offenses  and  is  usually  addressed  to  crimes 
against  the  sovereignty  of  the  State  and  political  officers;  and 
is  generally  addressed  to  classes  or  communities.  Pardon  con- 
dones infractions  of  the  peace  of  the  State ;  it  remits  punishment.'* 
The  difference  between  legislative  immunity  and  a  pardon  is  sub- 
stantial. The  latter  carries  an  imputation  of  guilt;  acceptance 
a  confession  of  it.     It  is  tantamount  to  the  silence  of  the  witness.^ 

§  247.  Pardoning  Power. 

The  President  "  shall  have  Power  to  grant  Reprieves  and 
Pardons  for  Offenses  against  the  United  States,  except  in  Cases  of 
Impeachment."  ^  This  power  is  construed  according  to  the  similar 
power  exercised  in  England  prior  to  the  Revolution.^  The 
President  alone  has  this  power  of  pardon.^  Congress  can  pass  no 
acts  limiting  or  interfering  with  the  pardoning  power  of  the 
President.^     This  pardoning  power  of  the  President  includes  the 

2  3  Inst.  233 ;  Ex  parte  Wells,  §  247.  i  Article  2,  §  2,  United 
supra.  States  Constitution. 

3  Ex  parte  Wells,  18  How.  (U.  S.)  ^  United  States  v.  Wilson,  7  Peters 
307,  15  L.  ed.  421.  (U.  S.)  150,  8  L.  ed.  640. 

§  246.    '  Ex  parte  Wells,  18  How.  ^  United  States  v.  Wilson,  supra; 

(U.  S.)  307,  10  L.  ed.  421.  Brown  v.  Walker,  161  U.  S.  591,  40 

2  United  States  v.  Klein,  13  Wall.  L.  ed.  819,  16  S.  C.  644 ;    Harlan  v. 

(U.  S.)  128,  20  L.  ed.  519.  McGourin,  218  U.  S.  442,  54  L.  ed. 

^Knote  V.   United  States,  95  U.  1101,  31  S.  C.  44. 
S.  149,  24  L.  ed.  442.  "  In  re  Garland,  4  Wall.   (U.  S.) 

*  Burdick    v.    United    States,    236  333,  18  L.  ed.  366  ;  Burdick  v.  United 

U.  S.  79,  59  L.  ed.  476,  35  S.  C.  267.  States,  236  U.  S.  79,  59  L.  ed.  476, 

"■  Burdick  v.  United  States,  supra.  35  S.  C.  267. 

19G 


Chap.  XXIV]  effect  of  pardon  [§  249 

power  of  commutation  of  sentences.^  The  governor  of  a  State 
derives  no  pardoning  power  from  the  United  States  Constitution, 
but  can  only  exercise  it  where  the  State  constitution  so  provides.^ 
The  general  power  of  the  President,  limited  only  to  cases  of 
impeachment,  "extends  to  every  offense  known  to  the  law,  and 
may  be  exercised  at  any  time  after  its  commission,  either  before 
legal  proceedings  are  taken,  or  during  their  pendency,  or  after 
conviction  and  judgment."  ^  Congress  only  has  the  power  to  pass 
acts  of  general  amnesty.^  Civil  liabilities  and  private  wrongs  are  in 
the  nature  of  property  rights  and  cannot  be  affected  in  any  way.^ 
The  power  to  pardon  offenses  includes, "  as  an  incident,  the  power  to 
release  penalties  and  forfeitures  which  accrue  from  the  offenses."^'' 
The  President  has  no  power  to  pardon  for  civil  contempt.^^ 

§  248.  Requisites  and  Construction. 

If  the  residence  of  the  person  intended  to  be  benefited  is  in- 
correctly designated,  the  effect  of  the  pardon  is  doubtful.^  The 
validity  of  a  pardon  necessitates  delivery  to,  and  acceptance 
by,  the  person  intended  to  be  benefited.  If  he  rejects  the  pardon, 
the  court  has  no  power  to  force  it  on  him.^  A  pardon  is  construed 
strictly  against  the  State  .^ 

§  249.  Effect  of  Pardon. 

A  pardon  releases  the  punishment  and  blots  the  guilt  out  of 

existence,  so  that  in  the  eyes  of  the  law  the  offender  is  as  innocent 

as  if  he  had  never  committed  the  offense.^     "  The  pardon  does 

^  Ex  parte  Wells,   supra;    In  re  "In  re  Nevitt,  117  Fed.  448,  54 

Ross,  140  U.  S.  453,  35  L.  ed.  581,  C.  C.  A.  622  (8th  Cir.). 

11  S.  C.  897.  §  248.   »  Respublica  v.  Buffington, 
8  Ex  parte  Wells,  18  How.  (U.  S.)  1  Dall.  (U.  S.)  60,  1  L.  ed.  37. 

307,  10  L.  ed.  421;   Schwab  v.  Berg-  ^  United  States  v.  Wilson,  supra; 

gren,  143  U.  S.  442,  36  L.  ed.  218,      Burdick  v.  United  States,  236  U.  S. 

12  S.  C.  525.  79,  59  L.  ed.  476,  35  S.  C.  267. 

'  Ex  parte  Garland,  4  Wall.   (U.  » Osborn  v.  United  States,  91  U . 

S.)   333,   18  L.  ed.  366 ;    Brown  v.  S.  474,  23  L.  ed.  388. 

Walker,  161  U.  S.  591,  40  L.  ed.  819,  §  249.   i  Ex  parte  Garland,  supra; 

16  S.  C.  644.  United    States    v.    Klein,    13    Wall. 

8  Brown  v.  Walker,  supra.  (U.  S.)  128,  20  L.  ed.  519 ;    Young 

9  Angle  V.  Chicago,  St.  Paul,  v.  United  States,  97  U.  S.  39,  24  L. 
etc.  R.  Co.,  151  U.  S.  1,  38  L.  ed.  55,  ed.  992 ;  Knote  v.  United  States, 
14  S.  C.  240.  95  U.  S.  149,  24  L.  ed.  442 ;   United 

10  Osborn  v.  United  States,  91  U.  States  v.  Commanding  Officer,  252 
S.  474,  23  L.  ed.  388.  Fed.  314. 

197 


§  249]  PARDON  [Chap.  XXIV 

not  affect  any  rights  which  have  vested  in  others  directly  by  the 
execution  of  the  judgment  for  the  offense,  or  which  have  been 
acquired  by  others  whilst  that  judgment  was  in  force."  ^  Where 
an  additional  punishment  is  prescribed  for  a  second  offense,  a 
pardon  of  the  first  offense  takes  away  the  right  to  inflict  said 
additional  punishment.^  The  eyes  of  the  court  are  closed  for- 
ever to  the  perception  of  the  actual  fact  of  the  crime  which  has 
been  pardoned.'*  The  pardon  extends  far  beyond  the  mere  dis- 
charge of  the  prisoner  from  further  imprisonment.  It  is  a  purg- 
ing of  the  offense.  Hence,  it  has  been  held  that  the  disability  of 
a  defendant  who  has  been  convicted  of  a  felony  was  removed 
by  the  pardon  ^  and  that  a  pardon  not  only  absolves  one  from 
punishment  but  from  all  penal  consequences,  such  as  the  dis- 
qualification from  following  his  occupation.  Therefore,  the  right 
to  cast  a  vote  in  an  election  is  restored,^  the  felony  which  has 
been  pardoned  cannot  be  the  basis  of  a  disbarment  proceeding 
against  an  attorney,'^  and  the  statutory  disability  to  act  as  an 
executor  is  removed.^  The  effect  of  the  pardon  is  to  relieve  the 
petitioner  from  all  penalties  and  disabilities  attached  to  the  offense. 
He  cannot  be  excluded,  because  of  that  offense,  from  continuing 
in  the  enjoyment  of  any  previously  acquired  rights,  otherwise  a 
punishment  is  being  enforced  against  him  notwithstanding  the 
pardon.^  Although  a  pardon  restores  all  civil  rights  ^^  and  re- 
moves all  penalties,  and  disabilities  from  attaching,^^  it  does  not 

2  Knote  V.  United  States,  95  U.  S.  » In  re  Raynor,  96   N.  Y.  Supp. 
149,  24  L.  ed.  442 ;  The  Confiscation      895. 

Cases,  20  Wall.  (U.  S.)  92,  22  L.  ed.  » Ex     parte     Garland,     4     Wall. 

320;  Semmes  v.  United  States,  91  U.  (U.  S.)  333,  18  L.  ed.  366. 

S.    21,    23    L.    ed.    193;    Osborn    v.  i"  Austin  ?>.    United    States,    155; 

United  States,  91  U.  S.  474,  23  L.  ed.  U.  S.  417,  39  L.  ed.  206,  15  S.  C.  167 ; 

388.  Illinois  Cent.  R.  R.  Co.  v.  Bosworth, 

3  Edwards  v.   Commonwealth,   78  133  U.  S.  92,  33  L.  ed.  550,  10  S.  C. 
Va.  39.  231 ;     Knote    v.    United    States,    95 

*  Carlisle    v.    United    States,    16      U.  S.   149,  24    L.    ed.  442;  United 
Wall.  (U.  S.)  147,  21  L.  ed.  426.  States  v.   Commanding  Officer,   252 

"  Hay  V.  Justice,  24  L.  R.  (Q.  B.  D.)  Fed.    314 ;     Wood   v.    Fitzgerald,    3 

561.  Oregon,  568. 

•  Riser    v.    Farr,    24     Ark.     161 ;  ii  Ex  parte  Garland,  4  Wall.   (U. 
Jones  V.  Board,  56  Miss.  766.  S.)  333,   18    L.  ed.    366 ;    Osborn  v. 

->  Scott  V.  State,  6  Texas  Civ.  App.      United  States,  91    U.  S.  474,  23  L. 
343.  ed.  388. 

198 


Chap.  XXIV] 


CONDITIONAL   PARDONS 


[§250 


restore  oflBces  which  have  been  forfeited.^-  And  it  was  said  ^^  that 
a  pardon  by  the  President  will  restore  an  army  officer  who  has 
been  reduced  in  rank  to  his  former  rank,  but  will  not  reinstate 
him  if  he  has  been  dismissed.  A  murderer  who  has  been  par- 
doned is  a  competent  witness,  and  it  is  immaterial  that  the  par- 
don states  that  it  is  issued  at  the  request  of  the  district  attorney 
for  the  purpose  of  making  the  pardoned  person  competent  to 
testify.^*  A  pardon  granted  by  the  governor  of  a  State  after 
the  term  of  imprisonment  has  been  served,  restores  competency 
as  a  witness.^^  The  privilege  of  a  witness  against  self  incrimi- 
nation is  not  affected  by  a  tender  of  a  pardon  from  the  Presi- 
dent, and  if  the  pardon  is  refused,  he  may  refuse  to  testify  on 
the  ground  of  incrimination.^® 

§  250.   Conditional  Pardons. 

A  conditional  pardon  can  be  granted  by  the  President  ^  and 
acceptance  of  it  makes  the  condition  binding  on  the  pardoned 
person  ^  who  cannot  question  the  condition '  or  maintain  that 
the  pardon  is  an  absolute  one.^  When  the  condition  is  performed, 
the  pardon  takes  full  effect  and  becomes  absolute.^  If  the  con- 
dition is  not  performed,  it  becomes  void  and  the  offender  may  be 
brought  before  the  court  and  sentenced  to  serve  the  rest  of  the 
sentence.® 


12  lUinois  Cent.  R.  R.  Co.  v.  Bos- 
worth,  supra;  Ex  parte  Garland, 
supra. 

"  12  Opinions  of  Attorney-Gen- 
eral, 547. 

"Boyd  V.  United  States,  142  U. 
S.  450,  35  L.  ed.  1077,  12  S.  C.  292. 

"  Logan  V.  United  States,  144  U. 
S.  263,  36  L.  ed.  429,  12  S.  C.  617. 

"Burdick  v.  United  States,  236 
U.  S.  79,  59  L.  ed.  476,  35  S.  C.  267 ; 
Curtin  v.  United  States,  236  U.  S. 
96,  59  L.  ed.  482,  35  S.  C.  271. 


§  250.  1  Ex  parte  WeUs,  18  How. 
(U.  S.)  301,  15  L.  ed.  421;  Semmes 
V.  United  States,  91  U.  S.  21,  23  L. 
ed.  193;  United  States  v.  Klein,  13 
WaU.  (U.  S.)  128,  20  L.  ed.  519. 

2  In  re  Ross,  140  U.  S.  453,  35 
L.  ed.  581 ;   Ex  parte  Wells,  supra. 

^  Ex  parte  Wells,  supra. 

^  Ex  parte  Wells,  supra. 

5  United  States  v.  KJein,  13  Wall. 
(U.  S.)  128,  20  L.  ed.  519. 

^  Ex  parte  Wells,  supra. 


199 


CHAPTER  XXV 

PERSONAL  PRESENCE  OF  ACCUSED 

§  251.   Accused  Must  Be  Present  Personally  at  Every  Stage  of  the  Case. 

§  252.    Must  Be  Present  in  Court  While  Jury  Is  Impaneled. 

§  253.   Must  Be  Present  When  Judgment  Is  Pronounced. 

§  254.    View  of  Premises. 

§  255.   Personal  Presence  Not  Required  in  Appellate  Tribunal. 

§  256.    Method  of  Bringing  Accused  into  Court  When  in  Custody. 

§  251.  Accused  Must  Be  Present  Personally  at  Every  Stage 
of  the  Case. 

The  rule  now  is  definitely  settled  that  after  indictment  found, 
nothing  shall  be  done  in  the  absence  of  the  prisoner.  While 
at  times  and  in  the  cases  of  misdemeanors,  this  rule  has  been 
relaxed  somewhat,  yet  it  is  not  in  the  power  of  a  prisoner 
charged  with  a  felony,  to  waive  the  right  to  be  present  per- 
sonally during  the  trial.  And  the  fact  that  he  was  present 
personally  in  court  during  the  trial  must  appear  from  the 
face  of  the  record.^  The  reason  for  this  rule  is  stated  thus  by 
Harlan,  J.^ :  "  The  argument  to  the  contrary  necessarily 
proceeds  upon  the  ground  that  he  (the  prisoner)  alone  is  con- 
cerned as  to  the  mode  by  which  he  may  be  deprived  of  his  life  or 
liberty,  and  that  the  chief  object  of  the  prosecution  is  to  punish 
him  for  the  crime  charged.  But  this  is  a  mistaken  view  as  well 
of  the  relations  which  the  accused  holds  to  the  public  as  of  the 
end  of  human  punishment.  The  natural  life,  says  Blackstone, 
'  cannot  be  legally  disposed  of  or  destroyed  by  any  individual, 
neither  by  the  person  himself,  nor  by  any  other  of  his  fellow  crea- 

§251.   'Diaz    v.    United    States,  C.  13G;    Ball  v.  United  States,   140 

223  U.  S.  442,  56  L.  ed.  500,  32  S.  U.  S.  118,  35  L.  ed.  377,  11  S.  C.  761 ; 

C.  250;    Dowdell  v.  United  States,  Hopt  v.  Utah,  110  U.  S.  574,  28  L. 

221  U.  S.  325,  55  L.  ed.  753,  31  S.  ed.  262,  4  S.  C.  202. 
C.    590;     Lewis    v.    United    States,  ^  jlopt  v.   Utah,    110  U.  S.   574, 

146  U.  S.  370,  36  L.  ed.  1011,  13  S.  28  L.  ed.  262,  4  S.  C.  202. 
200 


Chap.  XXV]        personal  presence  of  accused  [§  253 

tures,  merely  upon  their  own  authority.'  1  Bl.  Com.  133.  The 
pubhc  has  an  interest  in  his  life  and  liberty.  Neither  can  be 
lawfully  taken  except  in  the  mode  prescribed  by  law.  That  which 
the  law  makes  essential  in  proceedings  involving  the  deprivation 
of  life  or  liberty  cannot  be  dispensed  with  or  affected  by  the  con- 
sent of  the  accused,  much  less  by  his  mere  failure,  when  on  trial 
and  in  custody,  to  object  to  unauthorized  methods.  The  great 
end  of  punishment  is  not  the  expiation  or  atonement  of  the  offense 
committed,  but  the  prevention  of  future  offenses  of  the  same 
kind.  4  Bl.  Com.  11.  Such  being  the  relation  which  the  citizen 
holds  to  the  public,  and  the  object  of  punishment  for  public 
wrongs,  the  legislature  has  deemed  it  essential  to  the  protection 
of  one  whose  life  or  liberty  is  involved  in  a  prosecution  for  felony, 
that  he  shall  be  personally  present  at  the  trial,  that  is,  at  every 
stage  of  the  trial  when  his  substantial  rights  may  be  affected 
by  the  proceedings  against  him.  If  he  be  deprived  of  his  life  or 
liberty  without  being  so  present,  such  deprivation  would  be 
without  that  due  process  of  law  required  by  the  Constitution." 

§  252.  Must  Be  Present  in  Court  While  Jury  Is  Impaneled. 

It  is  the  right  of  any  one  when  prosecuted  on  a  capital  or  criminal 
charge  to  be  confronted  with  the  accusers  and  witnesses,  and  it 
is  within  the  scope  of  this  right  that  he  be  present,  not  only 
when  the  jury  is  hearing  his  case  but  at  any  subsequent  stage 
when  anything,  by  which  he  is  to  be  affected,  may  be  done  by  the 
prosecution.^  Accordingly,  it  has  been  held  that  it  is  essential 
that  the  accused  be  present  while  the  jury  is  being  selected  and 
challenges  are  made,  and  a  failure  to  observe  this  rule  will  be  a 
ground  for  the  reversal  of  the  judgment.^ 

§  253.  Must  Be  Present  When  Judgment  Is  Pronounced. 

The  record  in  a  homicide  case  must  show  affirmatively  that  the 
defendant  was  present  in  court  when  sentence  was  pronounced 
against  him  and  that  the  court  asked  the  prisoner  if  he  had  any- 
thing to  say  why  sentence  should  not  be  pronounced  against  him. 
These  facts  cannot  be  supplied  by  intendment  or  implication.^ 

§  252.   1  Lewis   v.   United   States,  ^  Lewis  v.  United  States,  supra. 

146  U.  S.  370,  36  L.  ed.  1011,  13  S.  §  253.   ^  Ball  v.  United  States,  140 

C.  136.  '  U.  S.  118,  35L.  ed.  377,  lis.  C.  761. 

201 


§  253]  PERSONAL    PRESENCE    OF   ACCUSED  [Chap.  XXV 

Accordingly  it  was  held  that  an  entry  on  the  record  that  the 
defendant  excepted  in  open  court  to  the  sentence  is  not  equivalent 
to  a  recital  that  he  was  present  personally  in  court,  as  the  entry 
is  subject  to  the  construction  that  the  exception  was  taken  by  the 
attorney  for  the  accused.^ 

§  254.  View  of  Premises. 

A  recent  case  ^  puts  a  discordant  note  to  the  trend  of  judicial 
decisions  on  the  subject  of  the  personal  presence  of  the  accused 
during  every  step  of  the  trial.  It  was  held  that  the  right  of  the 
accused  to  be  present  during  the  inspection  of  the  scene  of  the 
murder  may  be  waived  by  his  counsel,  but,  even  when  the  right 
is  not  waived,  his  absence  will  not  warrant  a  reversal  if  no  prej- 
udice resulted.  The  Supreme  Court  of  the  United  States  justified 
this  action  on  the  ground  that  when  the  judge,  who  tried  the  case 
without  a  jury,  inspected  the  premises,  he  was  not  addressed  im- 
properly by  any  one  and  that  he  did  no  more  than  visualize  the 
testimony  of  the  witnesses.  The  fallacy  of  this  reasoning  lies  in 
the  fact  that  the  prisoner,  if  present,  might  have  called  attention 
to  certain  physical  facts  and  so  cleared  up  whatever  doubts  or 
suspicions  may  have  been  lodged  in  the  mind  of  the  court 
at  the  time  of  such  inspection.  It  will  also  be  noted  that  Mr. 
Justice  Clarke  vigorously  dissented  from  the  decision  of  the 
majority  of  the  court.  [The  weight  of  authority  is  in  favor  of  the 
rule  that  the  facts  ascertained  by  a  view  of  the  premises  are  to  be 
considered  as  in  evidence  and  given  due  weight  in  reaching  a 
conclusion.^  It  is  to  be  hoped  that  nisi  'prius  judges,  out  of  an 
abundance  of  precaution  and  because  of  regard  for  the  rights  of  the 
accused,  will  never  undertake  the  inspection  of  premises  without 
the  personal  presence  of  the  accused.  In  a  recent  case,^  the 
United  States  Circuit  Court  of  Appeals  for  the  Second  Circuit 
condemned  the  practice  of  private  communications  between  the 
trial  court  and  jury,  but  under  the  facts  of  the  particular  case 

^  Bull  V.  United  States,  supra.  shall,    J.    in   Wall   v.    United   States 

§  254.    1  Valdez  ;;.  United  States,  Mining  Co.,  232  Fed.  613. 
244  U.  S.  432,  Gl  L.  ed.  1242,  37  S.  '  Dodge    v.    United    States,    258 

C.    725,    Affirming    30     Phil.     Rep.  Fed.  300  (C.  C.  A.  2d  Cir.) ;  Opinion 

293.  per  Rogers,  J.  Certiorari  denied,  —  U. 

*  Sec  authorities  collected  by  Mar-  S.  — ,  —  L.  ed.  — ,  —  S.  C.  — . 
202 


Chap.  XXV]  VIEW    OF   PREMISES  [§  256 

the  court  held  the  conduct  of  the  trial  judge  to  be  harmless  error. 
The  point  was  not  made  nor  decided  that  under  the  Constitution 
of  the  United  States  the  personal  presence  of  the  accused  is  required 
during  every  stage  of  the  case. 

§  255.   Personal  Presence  Not  Required  in  Appellate  Tribunal. 

The  requirements  of  the  Constitution  as  to  the  personal  pres- 
ence of  the  accused  in  court  when  his  case  is  being  considered, 
do  not  apply  to  courts  of  review  on  writ  of  error  or  certiorari.  In 
such  case  the  presence  of  the  accused  is  unnecessary.^ 

§  256.  Method  of  Bringing  Accused  into  Court  When  in 
Custody. 

No  writ  is  necessary  to  bring  into  court  any  prisoner  or  person 
in  custody,  or  for  remanding  him  from  the  court  into  custody; 
but  the  same  shall  be  done  on  the  order  of  the  court  or  district 
attorney,  for  which  no  fees  shall  be  charged  by  the  clerk  or 
marshal.^ 

§  255.   1  Dowdell  v.  United  States,      U.  S.  442,  36  L.  ed.  218,   12  S.  C. 
221  U.  S.  325,  55  L.  ed.  753,  31  S.      525. 
C.   590;    Schwab   v.   Berggren,    143  §256.   i  Revised   Statute    §1030. 


203 


CHAPTER  XXVI 

BILL  OF  PARTICULARS 

§  257.  The  Right  to  a  Bill  of  Particulars. 

§  258.  Bills  of  Particulars  in  Postal  Crimes. 

§  259.  When  It  Should  Be  Granted. 

§  260.  The  Rule  at  Common  Law. 

§26L  Office  of  the  Bill. 

§  262.  Bill  Cannot  Validate  or  Invalidate  Indictment. 

§  263.  Practice. 

§264.  Effect. 

§  265.  Granting  or  Refusing  of  a  Continuance. 

§  257.   The  Right  to  a  Bill  of  Particulars. 

The  Sixth  Amendment  to  the  Constitution  of  the  United  States 
provides  that  a  defendant  shall  be  informed  of  the  nature  and 
cause  of  the  accusation  against  him.  The  Fifth  Amendment 
to  the  Constitution  of  the  United  States  provides  that :  "  No 
person  shall  be  held  to  answer  for  a  capital,  or  otherwise  infamous 
crime,  unless  on  a  presentment  or  indictment  of  a  Grand  Jury." 
It  will  therefore  be  seen  that  the  Constitution  speaks  of  two 
separate  and  distinct  things.  A  defendant  charged  with  an 
infamous  crime  must  be  first  indicted  in  the  manner  provided  by 
law.  Next,  he  must  be  informed  of  the  nature  of  the  accusation 
against  him.  Consequently,  where  the  indictment  itself  is  general 
in  its  nature  or  merely  uses  the  language  of  the  statute,  a  person 
charged  with  a  criminal  offense  in  the  United  States  courts  is 
entitled  to  a  bill  of  particulars  as  a  matter  of  right,  a  right  which 
no  one  should  dispute,  in  view  of  the  positive  language  of  the 
Constitution  of  the  United  States.  Unfortunately,  of  late  years, 
the  tendency  in  the  lower  Federal  Courts  has  been  rather  to  restrict 
instead  of  enlarging  the  right  of  an  accused  person  to  a  bill  of  par- 
ticulars. There  are  few  cases  in  the  reports  where  the  right  of  a 
204 


Chap.  XXVI]      THE  RIGHT   TO   A   BILL   OF    PARTICULAES  [§  257 

defendant  to  a  bill  of  particulars  has  been  defined  or  directly 
passed  upon.  There  are  a  number  of  cases  ^  holding  that  the 
defendant  should  have  applied  for  a  bill  of  particulars  instead  of 
demurring  to  the  indictment,  but  the  right  to  the  bill  itself  was 
not  directly  passed  upon  and  can  only  be  gathered  by  inference. 
In  a  comparatively  recent  case,^  Judge  Ward,  of  the  United  States 
Circuit  Court  of  Appeals  for  the  Second  Circuit,  said :  "  Bills  of 
particulars  have  grown  from  very  small  and  technical  beginnings 
into  most  important  instruments  of  justice.  .  .  .  While  they  are 
not  entitled  to  advise  a  party  of  his  adversary's  evidence,  or 
theory,  they  will  be  required,  even  if  that  is  the  effect,  in  cases 
where  justice  necessitates  it."  The  clearest  expression  on  the 
subject  of  bills  of  particulars  was  recently  stated  by  District  Judge 
Julius  ]\I.  Mayer,  of  the  Southern  District  of  New  York.^  In 
granting  the  bill  of  particulars,  Judge  Mayer,  among  other 
things,  said :  "  There  are  situations  where  a  clear  and  frank  state- 
ment will  reduce  to  its  proper  and  simplest  limits  what  might 
otherwise  be  a  confused  controversy  and  thus  in  the  ultimate  best 
interest  of  the  government,  as  well  as  out  of  fairness,  to  a  defendant, 
a  prompt  solution  may  be  invited  of  what  are  more  likely  to  be 
questions  of  law  than  of  fact.  .  .  ."  And  again  the  learned 
Judge  said :  "  If,  in  a  case  of  this  kind,  fundamental  issues  are 
not  clearly  defined,  at  the  outset,  the  trial  Judge  may  well  be 
confronted  with  great  difficulty  in  passing  upon  the  admissibility 
of  testimony ;  and  the  familiar  promise  to  connect,  although  made 
in  perfect  good  faith,  may  not  be  fulfilled  with  resultant  embarrass- 
ment to  the  jury  in  the  endeavor  to  exclude  from  its  official  mind 
that  which  its  ears  have  heard."  There  can  be  no  doubt  that  a 
defendant  is  entitled  to  a  bill  of  particulars  where  the  averments 
follow  the  language  of  the  statute  and  are  general  in  terms. ^ 
A  defendant  has  a  right  to  demand  a  bill  of  particulars  to  show  him 

§  257.   *  Dunlop  v.  United  States,  chasing  Co.  (still  unreported),  where 

165  U.  S.  486,  491,  41  L.  ed.  799,  17  the  defendants  were  indicted  for  a 

S.  C.  375 ;    Rosen  v.  United  States,  violation  of  the  Sherman  Act. 
161  U.  S.  29,  40  L.  ed.  606,  16  S.  "Rosen  v.  United  States,  161  U. 

C.434;  Durland  i;.  United  States,  161  S.  29,  40  L.  ed.  606,  16  S.  C.  434; 

U.  S.  306,  40  L.  ed.  709,  16  S.  C.  508.  Durland   v.   United   States,    161   U. 

2  Locker    v.     American     Tobacco  S.  306,  40  L.  ed.  709,  16  S.  C.  508; 

Co.,  200  Fed.  973,  975.  Tubbs   v.   United   States,    105   Fed. 

'  United  States  v."  Sumatra  Pur-  59,  44  C.  C.  A.  357  (8th  Cir.). 

205 


§  257]  BILL    OF   PARTICULARS  [Chap.  XXVI 

under  what  statute  he  is  being  prosecuted.^  Upon  a  careful  review 
of  the  authorities,  the  rule  is  deducible  that  when  the  indictment  is 
general  in  its  language  or  ambiguous,  although  not  demurrable, 
the  defendant  is  entitled  as  of  right  to  a  bill  of  particulars.^  In 
the  case  of  Coffin  v.  United  States,^  the  court  said :  "  It  is  always 
open  to  the  defendant  to  move  the  judge  before  whom  the  trial 
is  had  to  order  the  prosecuting  attorney  to  give  a  more  particular 
description,  in  the  nature  of  a  specification  or  bill  of  particulars,  of 
the  acts  on  which  he  intends  to  rely,  and  to  suspend  the  trial 
until  this  can  be  done ;  and  such  an  order  will  be  made  whenever 
it  appears  to  be  necessary  to  enable  the  defendant  to  meet  the 
charge  against  him,  or  to  avoid  danger  of  injustice.  .  .  ." 

§  258.  Bills  of  Particulars  in  Postal  Crimes. 

In  cases  arising  under  Revised  Statute  Section  3893  for  deposit- 
ing in  the  post  office  obscene  literature,  defendants  have  main- 
tained by  way  of  demurrer  that  the  lascivious  literature  ought  to 
be  set  forth  in  the  indictments.^  They  contend  that  otherwise 
they  will  be  ignorant  of  the  facts  which  they  will  be  obliged  to 
meet  at  the  trial.^  Demurrers  on  this  ground  have  been  constantly 
overruled.^  The  appellate  courts  hold  that  under  the  circum- 
stances, the  defendant  should  apply  for  a  bill  of  particulars.'* 

§  259.  When  It  Should  Be  Granted.  . 

It  has  been  pointed  out  repeatedly  that  in  indictments  for 
statutory  offenses,  where  the  averments  following  the  language 
of  the  statute  are  general  in  terms,  or  where  non-essential  aver- 

5  Vedin  v.  United  States,  257  Fed.  States,  209  U.  S.  84,  52  L.  ed.  681, 

550  (C.  C.  A.  9th  Cir.).  28  S.  C.  428. 

« Rinker    v.    United    States,    151  ^  156    U.  S.  452,    39   L.  ed.  490, 

Fed.  755,  759,  81  C.  C.  A.  379  (8th  15  S.  C.  394. 

Cir.),  and  cases  there  cited;    Rim-  §258.   *  Rosen  v.  United  States, 

merman  v.  United  States,   186  Fed.  161  U.  S.  29,  40,  40  L.  ed.  606,  16 

307,   108  C.  C.  A.  385   (8th  Cir.) ;  S.  C.  434. 

Writ  of  Certiorari  denied    in  223  U.  -  Durland   v.   United   States,    161 

S.  721,  56  L.  ed.  630,  32  S.  C.   523 ;  U.  S.  300,  40  L.  ed.  709,  16  S.  C. 

Morris  v.    United   States,    161    Fed.  508. 

672,  081,  88  C.  C.  A.  532  (8th  Cir.) ;  ^  Dunlop   v.    United   States,    165 

Connors  v.  United  States,  158  U.  U.  S.  486,  41  L.  ed.  006,  17  S.  C.  375. 
S.  408,  411,  39  L.  ed.  1033,  15  S.C.  ■»  Tubbs    v.    United    States,     105 

951 ;   Armour  Packing  Co.  v.  United  Fed.  59,  44  C.  C.  A.  357  (8th  Cir.). 

200 


Chap.  XXVI]  PRACTICE  [§  263 

merits  are  under  the  videlicet,  the  defendant  may  apply  for  a  bill 
of  particulars.^ 

§  260.  The  Rule  at  Common  Law. 

At  common  law  the  indictment  was  very  general  in  descrip- 
tion and  the  prosecution  was  often  ordered  to  furnish  the  defendant 
with  a  bill  of  particulars.^  This  system  has  not  met  with  approval 
in  this  country  and  it  is  generally  held  that  the  indictment  must 
contain  all  essential  allegations  and  that  the  failure  to  so  allege 
will  not  be  cured  by  a  bill  of  particulars.^ 

§  261.   Office  of  the  Bill. 

The  office  of  a  bill  of  particulars  is  to  advise  the  court,  or  more 
particularly  the  defendant,  of  what  facts  he  will  be  required  to 
meet,  and  the  court  will  limit  the  Government  in  its  evidence  to 
those  facts  set  forth  in  the  bill  of  particulars.^ 

§  262.  Bill  Cannot  Validate  or  Invalidate  Indictment. 
WA  bill  of  particulars  cannot  make  an  indictment  valid  which 
fails  to  state  an  essential  element  of  the  offense,  especially  so  when 
objection  is  made  at  the  proper  time  and  place. ^  Likewise  an 
indictment  not  demurrable  on  its  face  does  not  become  so  by  the 
addition  of  a  bill  of  particulars  because  the  bill  of  particulars  is 
no  part  of  the  record.^ 

§  263.  Practice. 

The  defendant  should  apply  in  advance  of  the  trial  for  the  par- 
ticulars ;  otherwise  it  may  properly  be  assumed  that  he  is  fully  in- 

§  259.   1  Rosen  v.  United  States,  §  261.   i  Dunlop  v.  United  States, 

161  U.  S.  29,  40  L.  ed.  606,  16  S.  C.  165  U.  S.  486,  491,  41  L.  ed.  799, 

434 ;    Durland  v.  United  States,  161  17  S.  C.  375 ;  United  States  v.  Adams 

U.  S.  306,  40  L.  ed.  709,  16  S.  C.  Express  Co.,  119  Fed.  240;    Breese 

508;    Tubbs  v.   United  States,    105  v.  United  States,  106  Fed.  680,  682, 

Fed.  59,  44  C.  C.  A.  357  (8th  Cir.).  45  C.  C.  A.  535  (4th  Cir.). 

§  260.  1  Rexv.  Hamilton,  7  Carr.  &  §  262.   i  United  States  v.  Bayaud, 

P.  448 ;  Rex  v.  Gill,  2  B.  &  Aid.  204.  16  Fed.  376 ;   May  v.  United  States, 

2  United    States    v.    Bayaud,    16  199  Fed.  60. 
Fed.   376;     May   v.   United   States,  2  Dunlop   v.    United    States,    165 

199    Fed.    60;     Bannon    v.    United  U.  S.  486,  41  L.  ed.  799;   Coomer  v. 

States,  156  U.  S.  464,  39  L.  ed.  494,  United  States,  213  Fed.  1  (C.  C.  A. 

15  S.  C.  467.  -  8th  Cir.). 

207 


§  263]  BILL   OF   PARTICULARS  [Chap.  XXVI 

formed  of  the  precise  case  pending  against  him.^  When  he  does  so 
and  the  motion  is  overruled,  it  ought  not  to  be  regarded  as  a 
formal  matter  curable  by  verdict  and  may  be  assigned  as  error  .^ 
A  defendant  waives  his  right  to  object  to  the  form  of  the  indictment 
after  verdict  has  once  been  entered.^  If,  however,  it  should  become 
apparent  in  the  course  of  the  trial  that  the  language  in  the  indict- 
ment is  equivocal,  the  court  has  the  power  even  at  that  late 
hour  to  order  the  prosecuting  attorney  to  furnish  the  defendant 
with  a  bill  of  particulars  of  the  case.^  As  a  rule  the  granting  or 
refusal  of  the  bill  of  particulars  rests  in  the  sound  discretion  of  the 
court.  ^ 

§264.  Effect. 

When  the  order  for  bill  of  particulars  is  once  made  it  concludes 
the  rights  of  all  parties  who  are  affected  by  it ;  and  he  who  has 
furnished  a  bill  of  particulars  under  it  must  be  confined  to  the 
particulars  he  has  specified  as  closely  and  effectually  as  if  they 
constituted  essential  allegations  in  a  special  declaration.^  The 
general  rule  is  that  where  in  the  course  of  the  suit  from  any  cause 
a  party  is  placed  in  such  a  situation  that  justice  cannot  be  done 
in  the  trial  without  the  aid  of  the  information  to  be  obtained  by 
means  of  a  specification  or  bill  of  particulars,  the  court  by  virtue 
of  the  general  authority  to  regulate  the  conduct  of  trials  has 
power  to  direct  such  information  to  be  seasonably  furnished  and 
in  an  authentic  form ;  and  that  such  an  order  may  be  effectual  and 
aQComplish  the  purpose  intended  by  it,  the  party  required  to  fur- 

§  263.   1  Rosen  v.   United  States,  106  Fed.  680,  45  C.  C.  A.  535  (4th 

161U.  S.  29;  Rinker  z;.  United  States,  Cir.) ;    Rosen  v.  United  States,   161 

151   Fed.   755,   759;    Rimmerman  v.  U.  S.  29,  35,  40  L.  ed.  606,  16  S.  C. 

United  States,  186  Fed.  307.  434,    480 ;     Kettenbach    v.    United 

2  Moore  i;.  United  States,  160  U.  States,  202  Fed.  377,  382,  120  C.  C. 

S.  268.  A.    505    (9th    Cir.)  ;     McKnight    v. 

»  Dunbar   v.    United   States,    156  United  States,  97  Fed.  208,  38  C.  C. 

U.  S.  185,  192,  39  L.  cd.  390,  15  S.  A.  115  (6th  Cir.). 
C.  325 ;    Tingle  v.  United  States,  87  §  264.   i  Commonwealth  v.   Giles, 

Fed.  320  (5th  Cir.).  1  Gray,  466,  469  (an  indictment  for 

*  Kirby  v.  United  States,   174  U.  sclhng  Hquor) ;  WilHams  v.  Common- 

S.  47.  -wealth,  91  Pa.  State,  493,  502 ;    Re- 

s  CofTm    V.    United    States,     156  gina  v.  Esdaile,   1   Fost.  &  F.  213, 

U.  S.  432,  452,  39  L.  cd.  481,  15  S.  228. 
C.   394;     Brecse  v.    United    States, 

208 


Chap.  XXVI]      GRANTING  OR  REFUSING  OF  A  CONTINUANCE      [§  265 

nish  a  bill  of  particulars  must  be  restricted  and  confined  to  the 
particulars  specified.^ 

§  265.   Granting  or  Refusing  of  a  Continuance. 

The  granting  or  refusing  of  a  continuance,  like  the  granting  or 
refusal  of  a  new  trial/  is  a  matter  left  entirely  to  the  discretion 
of  the  court  and  is  not  subject  to  review  by  an  Appellate  Court 
unless  the  discretion  was  abused.^ 

^  Commonwealth    v.    Snelling,    15  C.  50 ;    Harless  v.  United  States,  92 

Pick.  (Mass.)  321,  331  (an  indictment  Fed.  353  (C.  C.  A.  8th  Cir.). 
for  libel).  2  Spear    v.     United     States,     246 

§  265.   1  Mattox  v.  United  States,  Fed.  250,  —  C.  C.  A.  —  (8th  Cir.). 
146  U.  S.  140,  36  L.  ed.  917,  13  S. 


TOL.i-14  209 


CHAPTER  XXVII 
JURY  TRIAL  — PART  I 

§  266.   Cannot  Be  Waived  —  When. 

§  267.   Who  Are  Entitled  to  a  Jury  Trial. 

§  268.   What  Is  Meant  by  "Trial." 

§  269.   Organization  of  Court. 

§  270.    Constitutional  Provisions. 

§  271.   Constitutional  Guarantees  to  Trial  by  Jury  Are  Not  Applicable  in 

Foreign  Possessions. 
§  272.   Applies  to  Territories  and  Aliens. 
§  273.   Cases  Previously  Tried  in  State  Court  and  Subsequently  Removed 

to  the  Federal  Court. 
§  274.   Number  of  Jurors. 
§  275.   Jury  of  Less  than  Twelve  in  Misdemeanor  Cases  Is  Proliibited. 

§  266.   Cannot  Be  Waived  —  When. 

One  accused  of  an  infamous  crime  or  felony  cannot  waive  a 
trial  by  jury  nor  any  substantial  right  affecting  his  life  or  liberty.^ 
A  Federal  judge  has  no  authority  to  hear  a  case  without  a  plea 
of  not  guilty  and  without  a  jury,  even  though  the  United  States 
and  the  defendant  consent  thereto.^  But  a  defendant  charged 
with  a  petty  misdemeanor  may  waive  a  trial  by  jury.^ 

§  267.  Who  Are  Entitled  to  a  Jury  Trial. 

Every  person,  except  those  who  are  attached  to  the  army  and 
navy  or  militia  in  actual  service,  is  entitled  to  a  jury  trial  where 

§  266.   1  Hopt  V.  Utah,  110  U.  S.  86,  94  C.  C.  A.  1  (6th  Cir.) ;   Rogers 

574,   28  L.   ed.   262,   4  S.   C.   202 ;  v.  United  States,  141  U.  S.  548,  35  L. 

Thompson  v.  Utah,   170  U.  S.  343,  ed.  853,  12  S.  C.  91 ;  Callan  v.  Wilson, 

42  L.  ed.  1061,  18  S.  C.  620;   Lewis  127  U.  S.  540,  32  L.  ed.  223,  8  S.  C. 

V.  United  States,  146  U.  S.  370,  36  1301 ;  Schick  v.  United  States,  195  U. 

L.  ed.  1011,  13  S.  C.  136;   Ex  parte  S.  65,  49  L.  ed.  99,  24  S.  C.  826. 

McClusky,    40    Fed.    71;     Low    v.  'Schick    v.    United    States,    195 

United  States,   169  Fed.  86,  94  C.  U.  S.  65,  49  L.  ed.  99,  24  S.  C.  826 ; 

C.  A.  1  (6th  Cir.).  Callan  v.  Wilson,  127  U.  S.  540,  32 

» Low  V.  United  States,  169  Fed.  L.  ed.  223,  8  S.  C.  1301. 
210 


Chap.  XXVII]  CONSTITUTIONAL  PROVISIONS  [§  270 

charged  with  a  criminal  offense.^  Proceedings  according  to  the 
rules  of  common  law  for  contempt  of  court  are  not  subject  to  the 
right  of  trial  by  jury  and  are  "  due  process  of  law  "  within  the 
meaning  of  the  Constitution  of  the  United  States.^  A  proceeding 
to  strike  an  attorney's  name  from  the  roll  is  one  within  the  proper 
jurisdiction  of  the  court  of  which  he  is  an  attorney,  and  does  not 
violate  the  constitutional  provision  which  requires  an  indictment 
and  trial  by  jury  in  criminal  cases.  The  reason  for  this  is  that 
this  is  not  a  criminal  proceeding,  but  an  action  to  protect  the 
court  from  the  official  ministration  of  persons  unfit  to  practice  as 
attorneys  therein.^ 

§  268.  What  Is  Meant  by  "  Trial." 

A  trial  is  the  final  examination  and  decision  of  matters  of  law  as 
well  as  facts  in  issue  for  which  every  antecedent  step  is  a  prep- 
aration.^ A  trial  in  accordance  with  due  process  of  law  usually 
means  that  the  trial  must  be  had  and  conducted  according  to  the 
forms  prescribed  by  the  law  of  the  land.^ 

§  269.   Organization  of  Court. 

The  trial  must  commence  with  a  constitutional  tribunal,  that 
is,  a  court  organized  under  the  Constitution  and  laws  of  the  United 
States,  with  authority  to  try  the  offense  of  which  the  defendant  is 
charged  and  a  judge  of  that  court  duly  appointed  and  commissioned 
and  authorized  to  preside  at  the  trial  and  a  constitutional  jury.^ 

§  270.   Constitutional  Provisions. 

The  Third  Article  of  the  Constitution  provides  that  "  The  Trial 
of  all  Crimes,  except  in  Cases  of  Impeachment,  shall  be  by  Jury ; 
and  such  Trial  shall  be  held  in  the  State,where  the  said  Crimes 

§  267.   1  Ex     parte     Milligan,     4  « CaUan  v.  Wilson,  127  U.  S.  540, 

Wall.  (U.  S.)  2,  18  L.  ed.  281 ;   Low  32  L.  ed.  223,  8  S.  C.  1301 ;  Hagar 

V.   United   States,    169   Fed.   86,    94  t;.    Reclamation    Distr.,    Ill    U.    S. 

C.  C.  A.  1  (6th  Cir.).  701,  28  L.  ed.  569,  4  S.  C.  663 ;   Mis- 

2  Eilenbecker  v.  District  Court  souri  Pac.  R.  Co.  v.  Humes,  115  U.  S. 
of  Plymouth  Co.,  134  U.  S.  31,  33  512,  29  L.  ed.  463,  6  S.  C.  110;  Den, 
L.  ed.  801,  10  S.  C.  424.  ex  rel.  Murray  v.  Hoboken  Land  Co., 

3  Ex  parte  WaU,  107  U.  S.  265,  18  How.  (U.  S.)  272,  15  L.  ed.  372. 
27  L.  ed.  552,  2  S.  C.  569.  §  269.   i  Freeman  v.  United  States, 

§  268.  1  Carpenter  v.  Winn,  221  227  Fed.  732,  142  C.  C.  A.  256  (2d 
U.  S.  533,  55  L.  ed.  §42,  31  S.  C.  683.      Cir.). 

211 


§  270]  JURY  TRIAL  [Chap.  XXVIl 

shall  have  been  committed;  but  when  not  committed  within 
any  State,  the  Trial  shall  be  at  such  Place  or  Places  as  the  Congress 
may  by  Law  have  directed."  The  Fifth  Amendment  provides 
that  no  person  shall  ".  .  .  be  deprived  of  life,  liberty  or  property 
without  due  process  of  law."  By  the  Sixth  Amendment  it  is 
declared  that  "  In  all  criminal  prosecutions  the  accused  shall 
enjoy  the  right  to  a  speedy  and  public  trial,  by  an  impartial  jury 
of  the  State  and  district  wherein  the  crime  shall  have  been  com- 
mitted, which  district  shall  have  been  previously  ascertained  by 
law,  and  to  be  informed  of  the  nature  and  cause  of  the  accusation  ; 
to  be  confronted  with  the  witnesses  against  him ;  to  have  compul- 
sory process  for  obtaining  Witnesses  in  his  favor,  and  to  have  the 
Assistance  of  Counsel  for  his  defence."  The  above  provisions  of 
the  Constitution  are  mandatory  in  all  trials  of  criminal  cases 
irrespective  of  whether  the  charge  is  for  felony  or  petty  mis- 
demeanor.^ The  guaranty  of  trial  by  jury  contained  in  the  Con- 
stitution was  intended  for  a  state  of  war  as  well  as  a  state  of  peace. 
Military  commissions  organized  during  the  Civil  War,  in  a  State 
not  invaded  and  not  engaged  in  rebellion,  in  which  the  Federal 
Courts  were  open,  and  in  the  proper  and  unobstructed  exercise 
of  their  judicial  functions,  had  no  jurisdiction  to  try,  convict  or 
sentence  for  any  criminal  offense,  a  citizen  who  was  neither  a 
resident  of  a  rebellious  State,  nor  a  prisoner  of  war,  nor  a  person 
in  the  military  or  naval  service.  The  fact  that  the  privilege  of 
the  writ  of  habeas  corpus  had  been  suspended  did  not  affect  the 
right  to  a  trial  by  jury.^  Our  forefathers  regarded  the  recognition 
and  exercise  of  the  right  to  trial  by  jury  as  vital  to  the  protection 
of  liberty  against  arbitrary  power .^  It  has  always  been  an  object 
of  deep  interest  and  solicitude  and  every  encroachment  upon  it 
has  been  watched  with  great  jealousy.^ 

§  271.  Constitutional  Guarantees  to  Trial  by  Jury  Are  Not 
Applicable  in  Foreign  Possessions. 

The  constitutional  provisions  referred  to  in  the  Third  Article 
and  wSixth  Amendment  of  the  Constitution  of  the  United  States 

§  270.    '  Callan  v.  Wilson,  127  U.  »  j  story  Const.  §  165. 

S.  540,  32  L.  c(l.  223,  8  S.  C.  1301.  *  Parsons  v.   Bedford,  3  Pet.    (U. 

2  Ex  prirto  MilliKun,  4  Wall.   (U.  S.)  433,  7  L.  ed.  732. 
S.)  2,  18  L.  cd.  281. 

212 


Chap.  XXVII]      CAUSES   REMOVED    TO    FEDERAL    COURTS  [§  273 

are  applicable  only  within  the  territorial  limits  of  the  United  States 
and  are  not  operative  in  Consular  Courts  sitting  in  a  foreign 
country  or  in  foreign  possessions.^  While  it  would  seem  that  the 
intention  of  Congress  in  providing  a  form  of  civil  government  for 
the  Philippine  Islands  was  to  extend  to  a  certain  extent  the  benefits 
of  the  Constitution  of  the  United  States,^  it  was  nevertheless  held, 
that  the  requirement  of  the  Fifth  Amendment  to  the  Consti- 
tution of  the  United  States,  that  infamous  crimes  must  be  pros- 
ecuted by  indictment,  is  not  applicable  to  the  Philippine  Islands.^ 
In  other  respects  the  rights  in  the  Philippine  Islands  which  are 
governed  by  the  "  Philippine  Bill  of  Rights  "  correspond  in  a 
great  measure  to  the  Constitution  of  the  United  States.'* 

§  272.   Applies  to  Territories  and  Aliens. 

The  provisions  relating  to  trial  by  jury  apply  to  territories 
within  the  United  States  and  to  the  District  of  Columbia.^  The 
provisions  of  the  Constitution  relating  to  trial  by  jury  apply  to 
resident  aliens  as  well  as  to  all  citizens  residing  in  the  United 
States.^ 

§  273.  Cases  Previously  Tried  in  State  Court  and  Subsequently 
Removed  to  the  Federal  Court. 

The  Seventh  Amendment  to  the  Constitution  of  the  United 
States  and  the  common  law  relating  to  jury  trials  secured  by  that 
Amendment  apply  to  cases  which  were  tried  by  a  jury  in  the 
State  court  and  afterwards  transferred  to  the  Federal  court/  but 
the  privileges  granted  by  said  Amendment  are  not  conferred  upon 

§  271.  1  Ross  V.  Mclntyre,  140  U.  S.  449,  53  L.  ed.  594,  29  S.  C. 
U.  S.  453,  35  L.  ed.  581,  11  S.  C.  334;  Serra  v.  Mortiga,  204  U.  S. 
897;  Dorr  v.  United  States,  195  U.  470,  51  L.  ed.  571,  27  S.  C.  343; 
S.  138,  49  L.  ed.  128,  24  S.  C.  808.  Kepner  v.  United  States,   195  U.  S. 

2Weems    v.    United    States,    217       100,  49  L.  ed.  114,  24  S.  C.  797. 
U.  S.  349,  54  L.  ed.  793,  30  S.  C.  544.  §  272.   i  Callan  v.  Wilson,  127  U. 

3  DowdeU  V.  United  States,  221  S.  540,  32  L.  ed.  223,  8  S.  C.  1301 ; 
U.  S.  325,  55  L.  ed.  753,  31  S.  C.  590.        Thompson  v.  Utah,   170  U.  S.  343, 

*Diaz  V.  United  States,  223  U 
S.  442,  56  L.  ed.  500,  32  S.  C.  250 
DowdeU  V.  United  States,  221  U.  S 
325,  55  L.  ed.  753,  31  S.  C.  590 
Gavieres  v.  United  States,  220  U.  S 
338,  55  L.  ed.  489,  31  S.  C.  421 
Carino  v.  Insular  dovcrnment,  212      9  Wall.  (U.  S.)  274,  19  L.  ed.  658. 

213 


42  L.  ed.  1061,  18  S.  C.  620. 

-  Wong  Wing  v.  United  States, 
163  U.  S.  228,  41  L.  ed.  140,  16  S. 
C.  977. 

§  273.  1  The  Justices  of  New  York 
V.    United    States,    ex    rel.    Murray, 


§  273]  JURY  TRIAL  [Chap.  XXVIl 

litigants  in  a  State  court,  where  the  State  court  has  jurisdiction  to 
enforce  or  construe  a  Federal  statute.  The  State  has  power  to 
prescribe  the  number  of  jurors  to  be  less  than  twelve  and  may  also 
provide  that  a  verdict  may  be  reached  by  a  vote  less  than  a 
unanimous  vote.^ 

§  274.  Number  of  Jurors. 

A  jury  under  the  Seventh  Amendment  to  the  Constitution  of 
the  United  States  must  consist  of  not  less  nor  more  than  twelve 
men.^  The  word  "  jury  "  means  a  tribunal  of  twelve  men  pre- 
sided over  by  a  court  and  hearing  the  allegations,  evidence  and 
argument  of  the  parties.^  And  as  the  constitutional  right  to  a 
trial  by  jury  requires  the  continuous  presence  of  the  court  and  the 
jury  during  every  step  of  the  trial,  it  was  held  that  another 
judge  cannot  be  lawfully  substituted  for  the  one  before  whom  the 
trial  was  commenced  regardless  of  the  emergency  existing  for  so 
doing.  In  a  recent  case  ^  the  trial  was  commenced  before  Judge 
Hough  who  was  taken  ill  suddenly  and  resumed  before  Judge 
Julius  Mayer,  and,  although  the  defendant  did  not  object  to  such 
substitution,  the  conviction  was  reversed,  the  court  holding  that 
a  defendant  charged  with  an  infamous  offense  was  incapable  of 
such  waiver. 

§  275.  Jury  of  Less  than  Twelve  in  Misdemeanor  Cases  Is 
Prohibited. 

While  a  defendant  charged  with  a  misdemeanor  may  waive  a 
jury,  nevertheless,  if  he  goes  to  trial  before  a  jury,  he  cannot 
consent  to  have  his  case  tried  by  a  jury  of  less  than  twelve  men.^ 

2  Minneapolis  &  St.  L.  R.  R.  Co.  U.  S.  593,  41  L.  ed.  837,  17  S.  C.  421 ; 

V.  Bombolis,   241   U.   S.   211,   60  L.  American  Publishing  Co.  v.   Fisher, 

ed.  961,  36  S.  C.  545.  166  U.  S.  464,  41  L.  ed.   1079,   17 

§  274.    1  Minneapolis     &     St.     L.  S.  C.  618. 
R.  R.  Co.  V.  Bombohs,  241  U.  S.  211,  2  Lamb  v.   Lane,   4  Oh.   St.    167, 

60  L.  ed.  961,  36  S.  C.  545;   Thomp-  .4 pprom/ in  Freeman  t;.  United  States, 

son  V.  United  States,  170  U.  S.  343,  227  Fed.  732,  146  C.  C.  A.  256  (2d 

42  L.  ed.  1061,  18  S.  C.  620;    Low  Cir.). 

V.   United  States,    169   Fed.   86,   94  ^  Freeman  v.  United  States,   227 

C.  C.  A.  1  (6th  Cir.) ;  Capital  Trac-  Fed.  732,  146  C.  C.  A.  256  (2d  Cir.). 
tion  Co.  V.  Hof,  174  U.  S.  1,  43  L.  §  275.    '  Dickinson       v.       United 

cd.  873,    19  S.   C.   580 ;    Walker  v.  States,  159  Fed.  801,  86  C.  C.  A.  625 

New  Mexico  &  S.  P.  R.  R.  Co.,  165  (1st  Cir.). 
214 


CHAPTER  XXVIII 
JURY  TRIAL  — PART  II 

IMPANELING   AND  SELECTING    PETIT  JURORS 

§  276.  Writs  —  Statutory  Provisions  and  Decisions  Thereunder. 

§  277.  Jury  of  Bystanders. 

§  278.  Challenge  to  the  Array. 

§  279.  Qualifications  of  Jiu-ors. 

§  280.  Number  of  Peremptory  Challenges  Permitted. 

§  281.  Order  of  Peremptory  Challenges. 

§  282.  Peremptory  Challenges  Exceeding  Number  Allowed. 

§  276.   Writs  —  Statutory  Provisions   and    Decisions   There- 
under. 

"  Writs  of  venire  facias,  when  directed  by  the  court,  shall  issue 
from  the  clerk's  office,  and  shall  be  served  and  returned  by  the 
marshal  in  person,  or  by  his  deputy;  or,  in  case  the  marshal  or 
his  deputy  is  not  an  indifferent  person,  or  is  interested  in  the  event 
of  the  cause,  by  such  fit  person  as  may  be  specially  appointed 
for  that  purpose  by  the  court,  who  shall  administer  to  him  an 
oath  that  he  will  truly  and  impartially  serve  and  return  the  writ. 
Any  person  named  in  such  writ  who  resides  elsewhere  than  at  the 
place  at  which  the  court  is  held,  shall  be  served  by  the  marshal 
mailing  a  copy  thereof  to  such  person  commanding  him  to  attend  as 
a  juror  at  a  time  and  place  designated  therein,  which  copy  shall  be 
registered  and  deposited  in  the  post  office  addressed  to  such  person 
at  his  usual  post  office  address.  And  the  receipt  of  the  person  so 
addressed  for  such  registered  copy  shall  be  regarded  as  personal 
service  of  such  writ  upon  such  person,  and  no  mileage  shall  be 
allowed  for  the  service  of  such  person.  The  postage  and  registry 
fee  shall  be  paid  by  the  marshal  and  allowed  him  in  the  settlement 
of  his  accounts."^  A  venire  facias  must  be  properly  addressed; 
§  276.   1  Federal  Judicial  Code,  §  279. 

215 


§  276]  JURY  TRIAL  [Chap.  XXVIII 

hence  a  venire  facias  addressed  to  the  "  Marshal  of  the  district  of 
Louisiana  "  in  place  of  the  proper  designation  of  "  Marshal  of  the 
eastern  district  of  Louisiana  ",  was  held  void.^  A  second  venire 
may  be  ordered  during  the  term  of  the  court  in  case  of  a  deficiency 
of  jurors.^  The  United  States  Court  can  empower  the  State 
authorities  to  draw  its  jurors,  if  it  finds  this  method  convenient 
and  safe.**  The  mode  of  impaneling  juries  is  within  the  discretion 
of  the  court  subject  only  to  the  general  restrictions  laid  down  by 
Congress.^  If  the  United  States  Marshal  is  considered  by  the 
court  not  to  be  an  indifferent  person,  a  special  officer  may  be 
appointed  by  the  court  to  serve  the  venire.^  Jurors  shall  be  re- 
turned from  such  parts  of  the  district  from  time  to  time,  as  the 
court  shall  direct,  so  as  to  be  most  favorable  to  an  impartial  trial, 
and  so  as  not  to  incur  an  unnecessary  expense,  or  unduly  burden 
the  citizens  of  any  part  of  the  district  with  such  service.^  This 
section  is  in  no  way  contrary  to  the  provisions  of  the  Sixth  Amend- 
ment to  the  Constitution  of  the  United  States,  the  purpose  of 
which  was  to  define  the  maximum  limit  within  which  a  person 
accused  of  a  crime  could  be  tried. ^  Jurors  must  be  drawn  from  the 
territory  embraced  within  the  district  where  the  court  is  sitting.* 
Although  this  is  a  discretionary  power,  the  court  must  make 
reasonable  use  of  it.  Hence,  in  a  criminal  suit  involving  trans- 
portation charges  against  a  defendant  corporation  in  a  district 
made  up  in  the  greater  part  of  the  city  of  Chicago,  a  panel  of  the 
jury  composed  largely  of  farmers  was  set  aside  as  not  able  to  return 
a  fair,  impartial  and  intelligent  verdict,  and  a  new  panel  from 
the  entire  district  secured.^"    The  court  can  substitute  a  jury 

2  United  States  v.  Antz,   16  Fed.  ^  Federal  Judicial  Code,   §  277. 

119.  8  United  States  v.  Ayres,  46  Fed. 

'  United  States  v.   Matthews,   26  651 ;      Spencer     v.     United     States, 

Fed.   Cas.    No.    15741    b;     Clawson  1G9  Fed.  562,  95  C.  C.  A.  60  (9th 

V.    United    States,    114    U.    S.    477,  Cir.) ;     United    States    v.    Peuschel, 

29  L.  ed.  179,  5  S.  C.  949;  Campbell  116  Fed.  642;   United  States  f^.  Mer- 

V.  United  States,  221   Fed.   186   (C.  chants'  Transportation  Co.,  187  Fed. 

C.  A.  9th  Cir.).  355;    Ruthenberg;  v.   United  States, 

*  United    States    t;.     Richardson,  245  U.  S.  480,  62  L.  ed.  414,  38  S. 

28  Fed.  61.  C.  168. 

^  United    States    v.    Shackelford,  »  May  v.  United  States,  199  Fed. 

18  How.  (U.  S.)  588,  15  L.  ed.  495.  53,  117  C.  C.  A.  431  (8th  Cir.). 

Mohnson   v.    United    States,    247  i"  United  States  v.   Standard  Oil 

Fed.  92  (C.  C.  A.  9th  Cir.).  Co.,  170  Fed.  988. 

216 


Chap.  XXVIII]  JURY  OF  BYSTANDERS  [§  277 

commissioner  to  draw  the  names  of  the  jurors  who  were  residents 
of  the  district  out  of  a  box  in  which  the  names  had  been  placed.'^ 
Plowever,  the  calhng  of  jurors  from  any  part  of  tlie  country  is 
discretionary  with  the  court.  Apphcation  that  the  court  direct 
such  a  summoning  of  the  jury  can  be  made  by  the  defendant.^^ 
The  duty  of  selecting  a  panel  of  jurors  cannot  be  delegated.^^ 
The  word  "  jurors  "  is  interpreted  to  include  grand  and  petit 
jurors.^^  Tliis  section  is  not  to  be  construed  to  mean  that  a  defend- 
ant is  entitled  to  a  grand  or  petit  jury  composed  of  representatives 
from  every  section  of  the  district.^^  When  special  juries  are  or- 
dered in  any  district  court,  they  shall  be  returned  by  the  marshal 
in  the  same  manner  and  form  as  is  required  in  such  cases  by  the 
laws  of  the  several  States.^^  Where  the  clerk,  acting  as  jury  com- 
missioner, followed  a  plan  to  apportion  the  jurors  approximately 
among  the  various  counties,  rejecting  the  names  in  excess  of  a 
predetermined  number  of  names  from  each  particular  county,  it 
was  held  that  this  was  at  most  an  irregularity,  and  overruling  a 
motion  to  quash  based  thereon  is  not  such  error  as  to  be  taken 
cognizance  of  by  the  Circuit  Court  of  Appeals  in  the  absence  of 
any  assignment.^'^ 

§  277.   Jury  of  Bystanders. 

"  When,  from  challenges  or  otherwise,  there  is  not  a  petit  jury 
to  determine  any  civil  or  criminal  cause,  the  marshal  or  his  deputy 
shall,  by  order  of  the  court  in  which  such  defect  of  jurors  happens, 
return  jurymen  from  the  bystanders  sufficient  to  complete  the 
panel ;  and  when  the  marshal  or  his  deputy  is  disqualified  as 
aforesaid,  jurors  may  be  so  returned  by  such  disinterested  person 
as  the  court  may  appoint,  and  such  person  shall  be  sworn,  as 
provided  in  the  preceding  section."  ^  This  section  has  been  held 
to  be  in  no  way  repealed  by  §  276  of  the  Judicial  Code,  Act  of 

"  United     States     v.    Merchants'  Spencer  v.  United  States,   169  Fed. 

Transportation  Co.,  supra.  562,  95  C.  C.  A.  860  (9th  Cir.). 

12  United  States  v.  Price,  30  Fed.  '»  United  States  v.  Feuschel,   116 

Cas.     No.     16088 ;     United     States  Fed.  642. 
V.  Chaires,  40  Fed.  820.  "  Federal  Judicial  Code,  §  281. 

"  Dunn    V.    United    States,    238  '^  Steers    v.    United    States,     192 

Fed.  508  (C.  C.  A.  5th  Cir.).  Fed.  1,  112  C.  C.  A.  423  (6th  Cir.). 

"  Agnew    V.    United    States,    165  §  277.   i  Federal     Judicial     Code, 

U.  S.  36,  41  L.  ed.  624,^  17  S.  C.  235 ;  §  280. 

217 


§  277]  JURY  TRIAL  [Chap.  XXVIII 

June  30th,  1879,  which  has  no  reference  to  the  calling  of  talesmen 
from  by-standers.^  When  a  person  who  is  summoned  in  pursuance 
of  a  court  order  is  not  in  court  when  the  order  is  made,  but  was 
present  when  the  marshal  returned  him  as  present,  and  when  his 
name  was  placed  on  the  panel,  and  the  ballot  placed  in  the  wheel, 
it  was  held  that  this  satisfied  the  statutory  construction  of  "  by- 
standers." ^  Special  ofiicers  may  be  appointed  by  the  court  when 
the  marshal  is  not  a  disinterested  person.^  If  the  marshal,  by 
the  order  of  the  court,  summons  members  of  the  grand  jury  with- 
out the  drawing  of  names,  or  if  the  court  directs  the  summoning 
of  additional  grand  jurors  although  a  sufficient  number  were 
impaneled  to  constitute  a  legal  grand  jury,  the  indictment  is 
valid  and  the  panel  is  legal.^ 

§  278.   Challenge  to  the  Array. 

Under  the  common  law,  a  challenge  to  the  array  could  be  inter- 
posed only  for  partiality  of  the  sheriff  summoning  the  jury.^ 

^  §  279.  Qualifications  of  Jurors. 
^.  "  No  person  shall  serve  as  a  petit  juror  in  any  district  court 
more  than  one  term  in  a  year ;  and  it  shall  be  sufficient  cause  of 
challenge  to  any  juror  called  to  be  sworn  in  any  cause  that  he  has 
been  summoned  and  attended  said  court  as  a  juror  at  any  term 
of  said  court  held  within  one  year  prior  to  the  time  of  such  chal- 
lenge." ^  ■  Section  286  must  be  read  with  Section  275  inasmuch  as 
the  latter  reads  "  Subject  to  the  provisions  hereinafter  contained."  ^ 
This  section  prescribed  the  rules  of  procedure  in  the  Federal  courts 
notwithstanding  provisions  of  the  State  court,  and  the  challenge 
will  not  be  entertained  unless  the  juror  served  within  one  year  in  the 

2  Lovejoy   v.    United    States,    128  *  Johnson   v.    United    States,    247 

U.  S.  171,  32  L.  ed.  389,  9  S.  C.  57;  Fed.  92  (C.  C.  A.  9th  Cir.). 

St.   Clair  v.   United  States,   154  U.  » United  States  v.  Nevin,  199  Fed. 

S.  134,  28  L.  ed.  936,  14  S.  C.  1002;  831. 

United  States  v.  Rose,  6  Fed.  13G ;  §  278.   '  3   Bl.   Comm.   359 ;    Co. 

United  States  v.   Munford,   16  Fed.  Litt.  156. 

164 ;     United   States   v.    Eagan,    30  §  279.    *  Federal    Judicial    Code, 

Fed.  608.  §  286. 

'  United   States  v.    Louphrey,    13  ^  Papernow  v.  Standard  Oil  Co., 

Blatch.     267,    26     Fed.     Cas.    No.  228  Fed.  399. 
15  631. 

218 


Chap.  XXVIII]  QUALIFICATIONS   OF  JURORS  [§  279 

same  court.^  The  section  expressly  refers  to  petit  jurors  and  hence 
no  other  service  such  as  a  grand  juror  will  be  sufficient.'*  If  a 
juror  should  serve  again  during  the  prohibited  term,  this  is  only 
a  ground  for  challenge  and  is  not  a  disqualification;  hence,  an 
indictment  will  not  be  quashed  because  one  of  the  grand  jurors 
which  found  it  was  acting  as  a  juror  a  second  time.^  Nor  is  it  a 
ground  of  challenge  that  the  juror  has  served  as  talesman  in 
another  cause  at  the  same  term  of  the  same  court.^  The  time  is 
computed  from  the  term  in  which  the  juror  is  summoned ;  hence, 
a  juror  summoned  in  the  November  Term  and  not  impaneled  or 
sworn  until  the  December  Term,  cannot  be  sworn  on  the  next 
November  Term.''  As  this  section  is  silent  as  to  the  disabilities  of 
grand  jurors  to  serve,  it  may  be  presumed  that  Congress  would 
have  made  suitable  provision  had  it  so  intended.^  This  section 
has  no  applicability  to  the  District  of  Columbia.^  "  Jurors  to 
serve  in  the  courts  of  the  United  States,  in  each  State  respectively,  n 
shall  have  the  same  qualifications,  subject  to  the  provisions  herein 
contained,  and  be  entitled  to  the  same  exemptions,  as  jurors  to 
the  highest  court  of  law  in  such  State  may  have  and  be  entitled 
to  at  the  time  when  such  jurors  for  service  in  the  courts  of  the 
United  States  are  summoned."  ^°  The  practical  purpose  of  this 
section  is  to  have  conformity  of  regulations  with  reference  to 
jurors  of  United  States  Courts  to  those  in  the  courts  of  the  par-  -i 
ticular  State."  Consequently,  any  subsequent  change  in  the  / 
State  regulations  would  be  followed  in  the  United  States  Courts  .^^  ' 
The  United  States  Courts  must  follow  the  State  rules  and  have  no  / 
discretion .^^  But  if  no  State  rule  exists,  "  The  mode  of  designating 
and  empaneling  jurors  for  the  trial  of  cases  in  the  courts  of  the 

»  Morris  v.  United  States,  IGl  Fed.  »  United  States  v.  Clark,  46  Fed. 

672,   80   C.   C.   A.    532    (8th   Cir.).  640. 

Reversed   on    other   grounds    in    168  '  United    States    v.    Nardello,    4 

Fed.  682,  94  C.  C.  A.  168  (8th  Cir.).  Mackey  (D.  C),  503. 

*  National  Bank  v.  Schufelt,   145  '»  Federal  Judicial  Code,  §  275. 

Fed.  509,  76  CCA.  187  (8th  Cir.) ;  "  United    States    v.    Douglass,    2 

United  States  v.  Reeves,  3  Woods,  Blatch.  207,  Fed.  Cas.  No.  14  989. 

199,  27  Fed.  Cas.  No.  16  139.  •-  United  States  v.  Douglass,  supra; 

^  United  States  v.  Reeves,  supra.  United    States    v.    Reed,    2    Blatch. 

« Walker  v.  CoUins,  50   Fed.  737,  435,  Fed.  Cas.  No.  16  134. 

1  C.  C  A.  642  (8th  Cir.).  "  United  States  v.   Reed,   supra; 

''  United  States  v.  Reeves,  supra.  United  States  v.  Clark,  46  Fed.  633. 

219 


§  279]  JURY  TRIAL  [Chap,  XXVIII 

United  States  is  within  the  control  of  those  courts  subject  only 
to  the  restrictions  Congress  has  prescribed,  and  also  to  such  limita- 
tions as  are  recognized  by  the  settled  principles  of  criminal  law 
to  be  essential  in  securing  impartial  juries  for  trial  of  offenses."^"* 
This  section  refers  only  to  the  qualifications  and  exemptions  of 
the  jurors,  but  not  to  the  number  of  jurors  to  be  summoned.*^ 
Although  the  Federal  Courts  follow  the  State  regulations  as  to  the 
qualifications  and  character  of  witnesses,  and  enforce  similar 
challenges  and  objections,  it  is  still  their  bounden  duty  to  enforce 
any  other  well-founded  objections  to  witnesses. ^'^  The  word 
"  qualifications  "  refers  and  is  interpreted  to  mean  general  qualifi- 
cations, such  as  to  age,  citizenship,  etc.,  and  has  no  reference  to 
objections  that  would  preclude  the  person  acting  on  the  jury,  but 
refers  to  those  objections  directed  to  the  juror  as  one  of  the  panel.^^ 
The  presumption  that  every  juror  is  of  good  moral  character 
exists.^^  If  a  grand  juror  is  competent  when  summoned,  but  loses 
his  property  qualifications  later,  he  will  be  allowed  to  complete  his 
duties  as  a  grand  juror.  Qualifications  refer  to  one's  eligibility 
as  a  juror  but  not  to  one's  continuing  capacity  to  serve.^^  A 
statutory  misdemeanor  which  is  not  listed  among  the  laws  of  the 
State  as  a  disqualification  will  not  disqualify  one  as  a  Federal  grand 
juror .^°  This  section  is  limited  by  the  phrase  "  Subject  to  the 
provisions  hereinafter  contained  "  ;  hence,  §  286  must  be  so  read.^^ 
Where  one  is  qualified  to  act  as  a  juror  in  his  own  State  he  is 
eligible  to  act  on  the  Federal  juries,  although  he  still  was  under 
the  disabilities  imposed  on  him  by  the  laws  of  the  United  States 
for  having  entered  the  service  of  the  Confederate  States  as  an 

"St.  Clair  v.  United  States,  154  i' United   States   v.    Greene,    113 

U.  S.  134,  38  L.  ed.  936,  14  S.  C.  1002.  Fed.  683  ;   United  States  v.  Williams, 

Quoting  the  above  from   the  opinion  1  Dill.  485,  28  Fed.  Cas.  No.  16  716. 

rendered  in  Pointer  v.  United  States,  ^*  Christopoulo    v    United    States, 

151  U.  S.  396,  38  L.  ed.  208,  14  S.  C.  230  Fed.  788,  144  C.  C.  A.  98  (4th 

410;    Ilcndrickson  v.  United  States,  Cir.). 

249  Fed.  34  (C.  C.  A.  4th  Cir.).  i«  United  States  v.  Gradwcll,  227 

"  United  States  v.   Reed,   supra;  Fed.  243. 

United  States  v.  Tallman,  10  Blatch.  -"  Christopoulo  v.   United  States, 

21,  28  Fed.  Cas.  No.  16  429;   United  supra;    United  States  v.  Scott,  ^230 

States  V.  Breeding,  207  Fed.  045.  Fed.  192. 

'*  United    States    v,    Benson,    31  "  Papernow  v.  Standard  Oil  Corn- 
Fed.  896.  pany  of  New  York,  228  Fed.  399. 

220 


Chap.  XXVIII]  PEREMPTORY   CHALLENGES  [§  280 

ofBcer.^^  The  personal  disqualifications  of  grand  jurors  may  be 
made  the  basis  for  objection  by  a  plea  in  abatement  if  made  prior 
to  arraignment  and  when  the  facts  are  ascertained.^^  The  Federal 
court  can  impanel  a  jury  de  medietate  if  the  State  court  has  such 
power .^^  "  No  citizen  possessing  all  other  qualifications  which  are 
or  may  be  prescribed  by  law  shall  be  disqualified  for  service  as 
grand  or  petit  juror  in  any  court  of  the  United  States  on  account 
of  race,  color,  or  previous  condition  of  servitude."  ^^  A  similar 
provision  in  the  Act  of  March  1st,  1875,  was  held  to  be  authorized 
by  the  Constitution.^^  Citizens  of  the  African  race  who  are  denied 
participation  as  jurors  in  the  administration  of  justice  because  of 
their  color,  although  coming  in  other  respects  within  the  require- 
ments, are  held  to  be  discriminated  against  contrary  to  the  amend- 
ments and  within  the  legislative  power  of  Congress  to  prevent.^'' 
But  such  discrimination  in  the  State  courts  is  not  sufficient  cause 
for  a  removal  of  the  case  to  the  Federal  courts  .^^  The  State  can 
make  regulations  such  as  requiring  good  moral  character  in  the 
selection  of  qualified  grand  jurors.^^ 

§  280.   Number  of  Peremptory  Challenges  Permitted. 

"  When  the  offense  charged  is  treason  or  a  capital  offense,  the 
defendant  shall  be  entitled  to  twenty  and  the  United  States  to  six 
peremptory  challenges.  On  the  trial  of  any  other  felony,  the 
defendant  shall  be  entitled  to  ten  and  the  United  States  to  six 
peremptory  challenges ;  and  in  all  other  cases,  civil  and  criminal, 
each  party  shall  be  entitled  to  three  peremptory  challenges; 
and  in  all  cases  where  there  are  several  defendants  or  several 
plaintiffs,  the  parties  on  each  side  shall  be  deemed  a  single  party 
for  the  purposes  of  all  challenges  under  this  section.     All  challenges, 

^  In  re  Carnes,  31  Fed.  397.  Warley,  245  U.  S.  60,  62  L.  ed.  149, 

"  Crowley  v.   United  States,    194  38  S.  C.  16. 
U.  S.  461,  48  L.  ed.  1075,  24  S.  C.  "  Neal   v.    Delaware,    103   U.    S. 

731;    Christopoulo  v.  United  States,  370,  26  L.  ed.  567;   Gibson  v.  Mis- 

supra;    Dunn  v.  United  States,  238  sissippi,  162    U.  S.    565,    40   L.    ed. 

Fed.  508  (C.  C.  A.  5th  Cir.).  1075,  16  S.  C.  904. 

^'' Kentucky  f).  Wendling,  182  Fed.  ^s  jsjgai  t,.  Delaware,  supra;    Gib- 

140.  son  t'.  Mississippi,  supra. 

"  Federal  Judicial  Code,  §  278.  "  Franklin  v.  South  Carolina,  218 

"  Ex   parte    Virginia,    100    U.    S.  U.  S.  161,  54  L.  ed.  980. 
239,   25   L.   ed.   676;    Buchanan  v. 

221 


§  280]  JURY  TRIAL  [Chap.  XXVIII 

whether  to  the  array  or  panel,  or  to  individual  jurors  for  cause  or 
favor,  shall  be  tried  by  the  court  without  the  aid  of  triers."  ^  The 
defendant  has  ten  peremptory  challenges  where  the  offense  is 
declared  to  be  a  felony  either  expressly  or  impliedly,  or  where 
Congress  punishes  an  offense  by  its  common  law  name.^  Until 
Congress  passed  legislation  on  the  point,  the  matter  of  peremptory 
challenges  was  unsettled,  although  the  Supreme  Court  has  stated 
that  the  Federal  Courts  could  adopt  the  State  rule.^  But  when 
Congress  acted  through  this  section,  the  number  of  peremptory 
challenges  was  determined  finally,  and  the  State  statutes  no  longer 
recognized.^  Where  several  indictments  against  one  person  are 
charged  and  a  request  for  consolidation  is  granted,  only  three 
peremptory  challenges  are  allowed.^  Where  two  defendants 
were  indicted  under  the  National  Bank  Act,  and  their  request 
for  consolidation  was  granted,  they  were  entitled  to  ten  peremptory 
challenges,  as  the  result  of  the  consolidation  was  to  make  an  indict- 
ment with  two  counts.^  If  several  persons  are  indicted  for  a 
joint  felony,  it  has  been  held  that  they  are  entitled  to  twenty 
peremptory  challenges,  they  being  for  this  purpose  considered  as 
one  person.^  Where  fourteen  defendants  refuse  to  act  together 
in  making  peremptory  challenges,  the  court  has  it  within  its 
discretion  to  allow  but  one  challenge  to  each  defendant.^  But 
if  three  indictments  against  the  same  person  are  tried  together 
before  the  same  jury,  three  peremptory  challenges  are  allowed  for 
each  indictment.^  But  if  two  or  more  actions  against  several 
defendants  are  consolidated,  they  are  entitled  to  three  peremptory 
challenges. ^°  If  there  is  a  consolidation  of  separate  causes,  but 
requiring  separate  verdicts,  each  party  will  be  entitled  to  the  same 

§  280.   1  Federal     Judicial    Code,  202  Fed.  377,  120  C.  C.  A.  505  (9th 

§  287.  Cir.). 

2  United   States   v.    Coppersmith,  ^  United  States  r.  Hall,  44  Fed.  883. 

4  Fed.  198.  ®  Schwartzberg  v.   United  States, 

» United  States  v.  Shackelford,  18  241  Fed.  348  (C.  C.  A.  2d  Cir.). 
How.  (U.  S.)  588,  15  L.  ed.  495.  » Bctts  v.  United  States,  132  Fed. 

*  Detroit,    etc.    Ry.    v.    Kimball,  228,    65   C.    C.   A.   452    (1st   Cir.); 

211  Fed.  G33,  128  C.  C.  A.  565  (6th  Krause  v.   United   States,    147   Fed. 

Cir.).  442,  78  C.  C.  A.  642  (8th  Cir.). 

»  Kharos    v.    United    States,    192  '»  Mutual  Life  Ins.  Co.  v.  Hillmon, 

Fed.  503,  113  C.  C.  A.  109  (8th  Cir.).  145  U.  S.  285,  36  L.  ed.  707,  12  S.  C. 

•Kettenbach    v.    United     States,  909. 
222 


Chap.  XXVIII]  PEREMPTORY    CHALLENGES  [§  280 

number  of  challenges  as  if  the  causes  had  been  tried  separately .^^ 
Where  the  same  plaintiff  consolidates  several  actions  against 
different  defendants,  he  is  entitled  to  no  greater  number  of  chal- 
lenges, and  each  defendant  is  entitled  to  three  peremptory  chal- 
lenges as  if  no  consolidation  had  existed.^^  The  meaning  to  be 
attributed  to  the  words  "  any  other  felony  "  is  to  be  determined 
by  the  common  law.  Generally,  it  may  be  stated  to  mean  offenses 
other  than  capital .^^  Robbing  a  mail  carrier  is  a  felony  both 
under  the  statutes  and  the  common  law.^^  Statutes  may  define 
the  gravity  of  an  offense ;  hence,  smuggling  is  made  a  misdemeanor 
by  statute.^^  Forcibly  breaking  or  attempting  to  break  into  a 
post  oflace  is  a  misdemeanor.^^  Challenges  to  favor  are  tried  by 
the  court,  and  on  appeal  the  findings  of  fact  by  the  trial  judge  as 
to  the  juror  will  not  be  set  aside  except  for  manifest  error.^^ 
On  challenging  a  juror  because  he  had  formed  an  opinion  as  to  the 
issues,  it  must  appear  beyond  doubt  that  the  trial  judge  was  in 
error  in  finding  otherwise.^^  This  section  was  held  not  to  be 
ex  post  facto  where  the  defendant  is  allowed  less  challenges  on  his 
trial  which  came  up  after  the  admission  of  Oklahoma,  although 
the  offense  was  committed  while  it  was  still  a  territory .^^  A 
prisoner  has  the  right  to  face  the  jury  before  he  can  be  compelled 
to  exercise  his  right  to  a  peremptory  challenge.^"  Although  the 
court  in  its  discretion  ^^  may  order  a  consolidation  of  indictments, 
"  no  defendant  could  be  deprived  without  its  consent  of  any  right 
material  to  its  defense,  whether  by  way  of  challenge  of  jurors  or 

"  Butler  V.  Evening  Post  Co.,  148  '^  Considine  v.  United  States,  112 

Fed.  821,  78  C.  C.  A.  511   (4th  Cir.).  Fed.  342,  50  C.  C.  A.  272  (6th  Cir.). 

Petition  for  a  writ  of  certiorari  denied  ^^  Press  Pubhshing  Co.  v.  McDon- 

in  204  U.  S.  670,  51  L.  ed.  672,  27  aid,  73  Fed.  440,   19  C.  C.  A.  516 

S.  C.  785.  (2d   Cir.). 

»2  Mutual   Life   Ins.   Co.    v.   Hill-  i«  Reynolds  v.   United  States,   98 

mon,  supra.  U.  S.  145,  25  L.  ed.  244 ;   Press  Pub- 

'^  United   States  v.    Coppersmith,  lishing  Co.  v.  McDonald,  supra, 

supra;    Dolan  v.  United  States,  133  ^^  Hallock  v.   United  States,    185 

Fed.  440,  69  C.  C.  A.  274  (8th  Cir.).  Fed.  417,  107  C.  C.  A.  487  (8th  Cir.). 

"  Harrison  v.  United  States,   163  "o  Pointer   v.    United   States,    151 

U.  S.   140,  41  L.  ed.  104,  16  S.  C.  U.  S.  396,  38  L.  ed.  208,  14  S.  C. 

961.  410. 

15  Revised  Statutes  §  2865 ;    Rea-  -^  Columbia-Ivnickerbocker    Trust 

gan  V.  United  States,  157  U.  S.  301,  Co.  v.  Abbot,  247  Fed.  833,  160  C.  C. 

39  L.  ed.  709,  15  S.  C.  610.  A.  55  (1st  Cir.). 

223 


§  280]  JURY  TRIAL  [Chap.  XXVIII 

otherwise."  ^^  Where  a  defendant  is  placed  on  trial  under  three 
indictments  which  have  been  consolidated,  the  test  as  to  whether 
he  is  entitled  to  three  peremptory  challenges  on  each  indictment  is 
whether  the  indictment  might  have  been  stated  as  separate  counts 
in  one  indictment.  If  they  could  have  been  alleged  in  one  indict- 
ment, he  is  entitled  to  but  three  peremptory  challenges ;  if  that 
could  not  have  been  done,  he  is  entitled  to  three  separate  challenges 
on  each  indictment.^^  Hence,  if  several  indictments  against  the 
same  defendant  are  tried  before  the  same  jury,  his  right  to  three 
peremptory  challenges  still  exists.^^  But  if  the  indictments  are 
consolidated  into  a  single  cause,  the  plaintiff  is  deemed  a  single 
party  for  the  piu'poses  of  challenging.^^  Where  fourteen  defend- 
ants refuse  to  join  in  making  peremptory  challenges,,  the  trial 
court  does  not  abuse  its  discretion  in  granting  each  defendant 
but  one  peremptory  challenge,  although  the  Judicial  Code  §  287 
authorized  the  courts  to  consider  the  defendant  to  be  a  single 
party  and  allowed  ten  peremptory  challenges.^®  Before  error 
may  be  assigned,  however,  the  defense  must  actually  use  up  all 
its  challenges  and  preserve  its  rights  on  the  trial .^^ 

§  281.   Order  of  Peremptory  Challenges. 

The  order  in  which  peremptory  challenges  shall  be  exercised  is  a 
matter  within  the  discretion  of  the  court,  and  the  practice  varies  in 
the  several  circuits.^  The  court  ^  suggested  that  an  effective  order 
of  peremptory  challenges  would  be  to  have  the  prosecutor  challenge 
first,  and  if  he  did  not  challenge  that  juror,  then  the  defendant 
must  state  whether  or  not  he  challenges ;  if  either  challenge,  then 
the  same  order  of  challenges  would  be  directed  to  the  new  juror. 

22  Mutual    Ins.    Co.    v.    Hillmon,  ^e  Schwartzberg  v.  United  States, 

145  U.  S.  285,  36  L.  ed.  706,  12  S.  C.  241  Fed.  348  (C.  C.  A.  2d  Cir.). 

909.  27  Krause  v.  United  States,  supra; 

2'  Krause    v.    United    States,    147  Mutual  Life  Ins.  Co.  v.  Hillmon,  188 

Fed.  442,  78  C.  C.  A.  642  (8th  Cir.) ;  U.  S.  208,  47  L.  ed.  446,  23  S.  C.  294. 

Mutual  Ins.  Co.  v.  Hillmon,  supra;  §  281.    *  Pointer  v.  United  States, 

Betts    V.    United    States,    132    Fed.  151  U.  S.  396,  38  L.  ed.  208,  14  S.  C. 

228,  05  C.  C.  A.  452  (1st  Cir.).  410;      Radford    v.     United    States, 

^  Betts  V.  United  States,  supra.  129  Fed.  49,  63  C.  C.  A.  491  (2d  Cir.) ; 

^^  Emanuel  v.  United  States,   196  Emanuel  v.  United  States,  196  Fed. 

Fed.   317,    116   C.   C.    A.    137    (2d  317,  116  C.  C.  A.  137  (2d  Cir.). 

Cir.).  2  Radford  v.  United  States,  supra. 
224 


Chap.  XXVIII]  PEREMPTORY    CHALLENGES  [§  282 

The  same  court  ^  stated  that  the  order  of  peremptory  challenges 
varied  in  the  different  districts,  the  rule  being  for  the  defendant 
to  begin  in  the  Southern  District  of  New  York,  and  for  the  other 
side  to  begin  in  the  Northern  District  of  New  York,  and  in  the 
District  of  Vermont.  The  court  can  lay  down  a  rule  to  the  effect 
that  each  juror,  on  voir  dire,  will  be  immediately  sworn  to  try  the 
case  unless  challenged  by  the  United  States  or  the  defendant.  It 
was  also  held  that  the  defendant  cannot  examine  all  the  jurors 
before  exercising  his  peremptory  challenges.'* 

§  282.   Peremptory  Challenges  Exceeding  Number  Allowed. 

If,  in  the  trial  of  a  capital  offense,  the  party  indicted  peremp- 
torily challenges  jurors  above  the  number  allowed  him  by  law,  such 
excess  of  challenges  shall  be  disallowed  by  the  court,  and  the 
cause  shall  proceed  for  trial  in  the  same  manner  as  if  they  had  not 
been  made.^ 

» Emanuel  v.  United  States,  su-  fornia),  154  U.  S.  134,  38  L.  ed.  936, 
pra.  14  S.  C.  1002. 

*  St.  Clair  v.  United  States  (Cali-  §  282.   ^  Revised  Statute  §  1031. 


VOL.  I  — 15  225 


CHAPTER  XXIX 
JURY  TRIAL  — PART  III 

CHALLENGE   FOR  CAUSE 

§  283.  Challenge  for  Cause  —  Bias. 

§  284.  Challenges  for  Cause,  When  Available. 

§285.  By  Whom  Tried. 

§  286.  Instances. 

§  287.  Challenges  in  Bigamy  Cases. 

§  283.  Challenge  For  Cause  —  Bias. 

By  the  Constitution  of  the  United  States  (Amend.  VI)  the  ac- 
cused is  entitled  to  a  trial  by  an  impartial  jury.  A  juror  to  be 
impartial  must,  to  use  the  language  of  Lord  Coke,  "  be  indifferent 
as  he  stands  unsworn,"  ^  Lord  Coke  also  says  that  a  principal 
cause  of  challenge  is  "  so  called  because,  if  it  be  found  true,  it 
standeth  sufficient  of  itself,  without  leaving  anything  to  the 
conscience  or  discretion  of  the  triers"^  or,  as  stated  in  Bacon's 
Abr.,  "  It  is  grounded  on  such  a  manifest  presumption  of  partiality, 
that,  if  found  to  be  true,  it  unquestionably  sets  aside  the  .  .  . 
juror."  ^  "If  the  truth  of  the  matter  alleged  is  admitted,  the 
law  pronounces  the  judgment ;  but  if  denied,  it  must  be  made  out 
by  proof  to  the  satisfaction  of  the  court  or  the  triers."  ■*  To  make 
out  the  existence  of  the  fact,  the  juror  who  is  challenged  may  be 
examined  on  his  voir  dire,  and  asked  any  questions  that  do  not 
tend  to  his  infamy  or  disgrace.  All  of  the  challenges  by  the  accused 
were  for  principal  cause.    It  is  good  ground  for  such  a  challenge 

§  283.   1  Co.  Litt.  155  b.,  approved  ^  Bac.    Abr.    tit.    Juries,    E,    1, 

in  Reynolds  v.  United  States,  98  U,  Approved    in    Reynolds    v.    United 

S.  145,  25  L.  ed.  244.  States,  98  U.  S.  145,  25  L.  ed.  244. 

2  Co.    Litt.    156   b.,     approved   in  *  Bac.    Abr.    tit.    Juries,    E.    12. 

Reynolds  v.  United  States,  98  U.  S.  Approved    in    Reynolds    v.     United 

145,  25  L.  ed.  244.  States,  98  U.  S.  145,  25  L.  ed.  244. 
226 


Chap.  XXIX]  CHALLENGE   FOR   CAUSE  —  BIAS  [§283 

that  a  juror  has  formed  an  opinion  as  to  the  issue  to  be  tried. 
The  courts  are  not  agreed  as  to  the  knowledge  upon  which  the 
opinion  must  rest  in  order  to  render  the  juror  incompetent,  or 
whether  the  opinion  must  be  accompanied  by  mahce  or  ill-will ; 
but  all  unite  in  holding  that  it  must  be  founded  on  some  evidence, 
and  be  more  than  a  mere  impression.  Some  say  it  must  be 
positive.^  Chief  Justice  Marshall,  in  Burr's  Trial,®  states  the 
rule  to  be  that,  "  Light  impressions,  which  may  fairly  be  pre- 
sumed to  yield  to  the  testimony  that  may  be  offered,  which  may 
leave  the  mind  open  to  a  fair  consideration  of  the  testimony, 
constitute  no  sufficient  objection  to  a  juror ;  but  that  those  strong 
and  deep  impressions  which  close  the  mind  against  the  testimony 
that  may  be  offered  in  opposition  to  them,  which  will  combat  that 
testimony  and  resist  its  force,  do  constitute  a  sufficient  objection 
to  him."  The  theory  of  the  law  is  that  a  juror  who  has  formed 
an  opinion  cannot  be  impartial.  Every  opinion  which  he  may 
entertain  need  not  necessarily  have  that  effect.  In  these  days  of 
newspaper  enterprise  and  universal  education,  every  case  of  public 
interest  is  almost,  as  a  matter  of  necessity,  brought  to  the  atten- 
tion of  all  the  intelligent  people  in  the  vicinity,  and  scarcely  any 
one  can  be  found  among  those  best  fitted  for  jurors  who  has  not 
read  or  heard  of  it,  and  who  has  not  some  impression  or  some 
opinion  in  respect  to  its  merits.  It  is  clear,  therefore,  that  upon 
the  trial  of  the  issue  of  fact  raised  by  a  challenge  for  such  cause  the 
court  will  practically  be  called  upon  to  determine  whether  the 
nature  and  strength  of  the  opinion  formed  are  such  as  in  law  neces- 
sarily to  raise  the  presumption  of  partiality.  The  question  thus 
presented  is  one  of  mixed  law  and  fact,  and  to  be  tried,  as  far  as 
the  facts  are  concerned,  like  any  other  issue  of  that  character,  upon 
the  evidence.  The  finding  of  the  trial  court  upon  that  issue 
ought  not  to  be  set  aside  by  a  reviewing  court,  unless  the  error  is 
manifest.  No  less  stringent  rules  should  be  applied  by  the  review- 
ing court  in  such  a  case  than  those  which  govern  in  the  consider- 
ation of  motions  for  new  trial  because  the  verdict  is  against  the 
evidence.  It  must  be  made  clearly  to  appear  that  upon  the 
evidence  the  court  ought  to  have  found  the  juror  had  formed  such 


5  Reynolds  ;;.   United^  States,   98  « 1  Burr  Trial,  416. 

U.  S.  145,  25  L.  ed.  244. 


227 


§  283]  JURY  TRIAL  [Chap.  XXIX 

an  opinion  that  he  could  not  in  law  be  deemed  impartial.  The 
case  must  be  one  in  which  it  is  manifest  the  law  left  nothing  to  the 
"  conscience  or  discretion  "  of  the  court.^  The  right  of  challenge 
comes  from  the  common  law  with  the  trial  by  jury  itself,  and  has 
always  been  held  essential  to  the  fairness  of  trial  by  jury.  As  was 
said  by  Blackstone,  and  repeated  by  Mr.  Justice  Story :  "  In 
criminal  cases,  or  at  least  in  capital  ones,  there  is  in  favorem  mice, 
allowed  to  the  prisoner  an  arbitrary  and  capricious  species  of 
challenge  to  a  certain  number  of  jurors,  without  showing  any 
cause  at  all ;  which  is  called  a  peremptory  challenge ;  a  provision 
full  of  that  tenderness  and  humanity  to  prisoners,  for  which  our 
English  laws  are  justly  famous.  This  is  grounded  on  two  reasons : 
1.  As  every  one  must  be  sensible,  what  sudden  impressions  and 
unaccountable  prejudices  we  are  apt  to  conceive  upon  the  bare 
looks  and  gestures  of  another;  and  how  necessary  it  is  that  a 
prisoner  (when  put  to  defend  his  life)  should  have  a  good  opinion 
of  his  jury,  the  want  of  which  might  totally  disconcert  him ;  the 
law  wills  not  that  he  should  be  tried  by  any  one  man  against  whom 
he  has  conceived  a  prejudice  even  without  being  able  to  assign  a 
reason  for  such  his  dislike.  2.  Because,  upon  challenges  for  cause 
shown,  if  the  reason  assigned  prove  insufficient  to  set  aside  the 
juror,  perhaps  the  bare  questioning  his  indifference  may  sometimes 
provoke  a  resentment ;  to  prevent  all  ill  consequences  from  which, 
the  prisoner  is  still  at  liberty,  if  he  pleases,  peremptorily  to  set  him 
aside."  ^  Perhaps  the  clearest  statement  of  the  law  on  the  subject 
of  the  qualification  of  a  juror  is  found  in  a  New  York  case,^  the 
text  of  which  was  approved  by  the  United  States  Circuit  Court  of 
Appeals,  for  the  Ninth  Circuit,^^  which  is  as  follows :   "  There  has 

^  Reynolds   v.   United   States,   98  de  la  Ley,  voc.  Challenge,  2  Hawk. 

U.  S.  145,  25  L.  ed.  244;    Thiede  v.  chap.  43,  §  4;    Reg.  v.  Frost,  9  Car. 

Utah  Territory,    159  U.   S.   516,  40  &  P.  129,  137 ;  Hartzell  v.  Com.,  40 

L.  ed.  241,  16  S.  C.  64;    GaUott  v.  Pa.  462,  466 ;  State  r;.  Price,  10  Rich. 

United  States,  87  Fed.  446,  450,  31  L.    351,    357,    approved    in    Lewis   v. 

C.C.  A.  44  (5th  Cir.),&u^see  Williams  United  States,   146  U.  S.  370,  376, 

V.  United  States,  93  Fed.  396,  398,  36  L.  ed.  1014,  13  S.  C.  136. 

35  C.  C.  A.  369  (9th  Cir.).  » People  v.  McQuade,  110  N.  Y. 

"4  Bl.  Com.  353;    United  States  300. 

V.  Marchant,  4  Mjuson,  160,  162,  25  "Williams   v.   United   States,    93 

U.  S.  (12  Wheat.)  480,  482,  6  L.  ed.  Fed.  396,  400,  35  C.  C.  A.  369  (9th 

700.     See  aUo Co.  Litt.  156  b ;  Termes  Cir.). 
228 


Chap.  XXIX]  CHALLENGE    FOR   CAUSE  —  BIAS  [§  283 

been  no  change  of  the  fundamental  rule  that  an  accused  person  is 
to  be  tried  by  a  fair  and  impartial  jury.  Formerly  the  fact  that  a 
juror  had  formed  and  expressed  an  opinion  touching  the  guilt  or 
innocence  of  a  person  accused  of  crime  was  in  law  a  disqualification  ; 
and,  although  he  expressed  an  opinion  that  he  could  hear  and 
decide  the  case  upon  the  evidence  produced,  this  did  not  render  him 
competent.  .  .  .  Now,  as  formerly,  an  existing  opinion,  by  a 
person  called  as  a  juror,  of  the  guilt  or  innocence  of  a  defendant 
charged  with  crime,  is  prima  facie  a  disqualification ;  but  it  is  not 
now,  as  before,  a  conclusive  objection,  provided  the  juror  makes 
the  declaration  specified  (that  he  believes  that  such  opinion  or 
impression  will  not  influence  his  verdict,  and  he  can  render  an 
impartial  verdict  according  to  the  evidence),  and  the  court  as 
judge  of  the  fact,  is  satisfied  that  such  opinion  will  not  influence 
his  action.  But  the  declaration  must  be  unequivocal.  It  does 
not  satisfy  the  requirement,  if  the  declaration  is  qualified  or  con- 
ditional. It  is  not  enough  to  be  able  to  point  to  detached  lan- 
guage, which,  alone  construed,  would  seem  to  meet  the  statutory 
requirement,  if,  on  construing  the  whole  declaration  together,  it  is 
apparent  the  juror  is  not  able  to  express  an  absolute  belief  that  his 
opinion  will  not  influence  his  verdict."  And  the  Supreme  Court 
of  Nevada  ^^  states  the  rule  in  the  following  language :  "  When  not 
regulated  by  statutory  provisions,  we  think  that  whenever  the 
opinion  of  the  juror  has  been  formed  upon  hearing  the  evidence  at 
a  former  trial,  or  at  the  preliminary  examination  before  a  com- 
mitting magistrate,  or  for  any  cause  has  been  so  deliberately 
entertained  that  it  has  become  a  fixed  and  settled  belief  of  the 
prisoner's  guilt  or  innocence,  it  would  be  wrong  to  receive  him. 
In  either  event,  in  deciding  these  questions,  courts  should  ever 
remember  that  the  infirmities  of  human  nature  are  such  that 
opinions  once  deliberately  formed  and  expressed  cannot  easily 
be  erased,  and  that  prejudices  openly  avowed  cannot  readily  be 
eradicated  from  the  mind.  Hence,  whenever  it  appears  to  the 
satisfaction  of  the  court  that  the  bias  of  the  juror,  actual  or 

11  State  V.  McClear,   11  Nev.  39,  People  v.  Casey,  96  N.  Y.  122;  Ste- 

67,  approved  in  Williams  v.   United  phens  v.  People,  38  Mich.  739 ;  Smith 

States,  93  Fed.  396,  400,  35  C.  C.  A.  v.  Eames,  36  Am.  Dec.  515,  and  cases 

369  (9th  Cir.).     See  also  People  v.  cited  in  note  thereto. 
Wells,    100  Cal.   227,   34  Pac.   718; 

229 


§  283]  JURY  TRIAL  [Chap.  XXIX 

implied,  is  so  strong  that  it  cannot  easily  be  shaken  off,  neither 
the  prisoner  nor  the  State  ought  to  be  subjected  to  the  chance  of 
conviction  or  acquittal  it  necessarily  begets.  But  whenever  the 
court  is  satisfied  that  the  opinions  of  the  juror  were  founded  on 
newspaper  reports  and  casual  conversations,  which  the  juror  feels 
conscious  he  can  readily  dismiss,  and  where  he  has  no  deliberate 
and  fixed  opinion,  or  personal  prejudice  or  bias,  in  favor  of  or 
against  the  defendant,  he  ought  not  to  be  excluded.  The  sum 
and  substance  of  this  whole  question  is  that  a  juror  must  come  to 
the  trial  with  a  mind  uncommitted,  and  be  prepared  to  weigh  the 
evidence  in  impartial  sca-les,  and  a  true  verdict  render  according 
to  the  law  and  the  evidence."  An  allowance  of  a  challenge  to  a 
juror  for  cause  and  the  selection  of  another  competent  and  un- 
biased juror  in  his  place,  works  no  prejudice  to  the  other  party .^^ 

§  284.   Challenges  for  Cause,  When  Available. 

In  order  to  take  advantage  of  an  error  in  denying  a  challenge  for 
cause,  it  must  appear  that  the  peremptory  challenges  have  been 
exhausted.^ 

§  285.  By  Whom  Tried. 

In  the  Federal  courts,  challenges  because  of  bias  or  favor  are 
tried  by  the  judge  as  an  issue  of  fact  without  a  jury,^  and  the  de- 
cision of  the  court  in  the  absence  of  an  abuse  of  discretion,  will 
not  be  set  aside  by  the  reviewing  court  .^ 

§  286.  Instances. 

Where  a  juror  admits  bias  or  discloses  facts  from  which  bias 
may  be  presumed,  a  challenge  for  cause  should  be  sustained.^ 
A  juror  must  be  indifferent  as  he  stands  unsworn.^    It  is  sufficient 

"Northern    Pac.    R.    R.    Co.    v.  aid,  73  Fed.  440,   19  C.  C.  A.  516 

Herbert,  116  U.  S.  642,  29  L.  cd.  755,  (2d   Cir.) ;    Petition   for   a   ivrit   of 

6  S.  C.  590.  certiorari  denied  in   163  U.   S.  700, 

§  284.   1  Hawkins  v.  United  States,  41  L.  cd.  320,  16  S.  C.  1205. 

116  Fed.  569,  53  C.  C.  A.  663  (9th  §286.   »  Dolan  v.   United  States, 

Cir.).  123  Fed.  52,  59  C.  C.  A.  176  (9th 

§  285.   1  Federal     Judicial     Code,  Cir.). 

§  2S7.  2  People  V.  Brown,  72  Calif.  390, 

2  Press  Publishing  Co.  v.  McDon-  14  Pac.  90. 
230 


Chap.  XXIX]  INSTANCES  [§  286 

cause  for  challenging  a  juror  for  bias  if  he  entertains  a  fixed  opinion 
as  to  the  guilt  or  innocence  of  the  defendant.^  A  juror  who  has 
formed  a  belief  as  to  the  guilt  of  the  accused,  which  requires  proof 
to  change,  is  incompetent  to  serve  on  the  jury.'*  But  prejudice 
of  a  juror  against  the  business  or  occupation  of  a  defendant, 
where  the  juror  is  not  acquainted  with  the  defendant  and  has  no 
prejudice  against  him  personally,  is  not  sufficient  ground  for  a 
challenge  of  the  juror  for  cause.^  It  is  not  error  to  refuse  the 
interrogation  of  the  jury  whether  they  distinguished  between 
Socialists  and  Anarchists.^  In  Ex  parte  Spies,^  a  juror  testified 
to  a  decided  prejudice  against  socialists  and  communists,  as  the 
defendants  were  said  to  be,  but  as  the  charge  to  be  tried  was 
murder,  and  there  was  no  prejudice  against  the  defendants  as 
individuals,  he  was  accepted  and  sworn  as  a  juror.  It  is  essential 
to  the  administration  of  justice  that  jurors  should  enter  upon 
their  duties  with  minds  entirely  free  from  every  prejudice;  yet 
it  often  happens  that  on  general  and  public  questions  and  where 
a  private  right  depends  on  such  a  question  the  difficulty  of  ob- 
taining jurors  whose  minds  are  entirely  uninfluenced  by  opin- 
ions previously  formed  is  undoubtedly  considerable.^  An  ac- 
cused person  cannot  of  right  demand  a  mixed  jury,  some  of 
which  shall  be  of  his  race,  nor  is  a  jury  of  that  kind  guaranteed 
by  the  Constitution  to  any  race.  The  accused  is  merely  guar- 
anteed that  no  discrimination  because  of  race  or  color  shall  be 
made  in  the  impaneling  of  the  jury.  Mere  absence  of  jurors  of 
his  race  is  not  sufficient  proof  of  such  discrimination.^  A  gov- 
ernment employee  is  disqualified  from  sitting  on  a  jury  in  a 
Federal  criminal  case.^° 

3  Cancemi   v.    People,    16   N.    Y.  245  U.  S.  480,  38  S.  C.  168,  62  L.  ed. 

501 ;    Reynolds  v.  United  States,  98  414. 

U.  S.  145,  25  L.  ed.  244.  ^  123  U.  S.  131,  31  L.  ed.  80,  8  S. 

*  Blackman  v.  State,  80  Ga.  785,  C.  22. 

7  S.  E.  626;    People  v.   McQuade,  » Mima    Queen    v.    Hepburn,    7 

110  N.  Y.  284;    People  v.  Shufelt,  Cranch  (U.  S.),  290,  3  L.  ed.  348; 

61  Mich.  237,  28  N.  W.  79  ;  Washing-  Connors  v.  United  States,  158  U.  S. 

ton  V.  Commonwealth,  86  Va.  405,  408,  39  L.  ed.  1033,  15  S.  C.  951. 

10  S.  E.  419.  »  Martin  v.  Texas,  200  U.  S.  316, 

^  Thieda  v.  Utah,  159  U.  S.  510,  50  L.  ed.  497,  26  S.  C.  338. 

40  L.  ed.  237,  16  S.  C.  62.  i"  Crawi"ord  v.  United  States,  212 

» Ruthenberg    v.    United    States,  U.  S.  183,  53  L.  ed.  465,  29  S.  C.  260. 

231 


§  287]  JUEY  TRIAL  [Chap.  XXIX 

§  287.   Challenges  in  Bigamy  Cases. 

"  In  any  prosecution  for  bigamy,  polygamy,  or  unlawful  cohabi- 
tation, under  any  statute  of  the  United  States,  it  shall  be  sufficient 
cause  of  challenge  to  any  person  drawn  or  summoned  as  a  juryman 
or  talesman  —  First,  that  he  is  or  has  been  living  in  the  practice  of 
bigamy,  polygamy,  or  unlawful  cohabitation  with  more  than  one 
woman,  or  that  he  is  or  has  been  guilty  of  an  ofTense  punishable 
either  by  sections  one  or  three  of  an  act  entitled  '  An  Act  to  amend 
section  fifty-three  hundred  and  fifty-two  of  the  Revised  Statutes  of 
the  United  States,  in  reference  to  bigamy,  and  for  other  purposes  ', 
approved  March  twenty-second,  eighteen  hundred  and  eighty-two, 
or  by  section  fifty-three  hundred  and  fifty-two  of  the  Revised 
Statutes  of  the  United  States,  or  the  Act  of  July  first,  eighteen 
hundred  and  sixty-two  entitled  '  An  Act  to  punish  and  prevent  the 
practice  of  polygamy  in  the  Territories  of  the  United  States  and 
other  places,  and  disapproving  and  annulling  certain  acts  of  the 
legislative  assembly  of  the  Territory  of  Utah  ' ;  or  Second,  that 
he  believes  it  right  for  a  man  to  have  more  than  one  living  and 
undivorced  wife  at  the  same  time,  or  to  live  in  the  practice  of 
cohabiting  with  more  than  one  woman.  Any  person  appearing, 
or  offered  as  a  juror  or  talesman,  and  challenged  on  either  of  the 
foregoing  grounds,  may  be  questioned  on  his  oath  as  to  the  exist- 
ence of  any  such  cause  of  challenge;  and  other  evidence  may  be 
introduced  bearing  upon  the  question  raised  by  such  challenge; 
and  this  question  shall  be  tried  by  the  court.  But  as  to  the  first 
ground  of  challenge  before  mentioned,  the  person  challenged 
shall  not  be  bound  to  answer  if  he  shall  say  upon  his  oath  that  he 
declines  on  the  ground  that  his  answer  may  tend  to  criminate 
himself;  and  if  he  shall  answer  to  said  first  ground,  his  answer 
shall  not  be  given  in  evidence  in  any  criminal  prosecution  against 
him  for  any  offense  above  named ;  but  if  he  declines  to  answer 
on  any  ground,  he  shall  be  rejected  as  incompetent."  ^  Grand 
jurors  are  within  the  scope  of  this  section.^  A  juror  who  had 
been  pardoned  by  the  President  for  past  polygamous  practices 
does  not  come  within  the  prohibition  of  the  statute.^ 

§  287.   '  Federal     Judieial     Code,  U.  S.  477,  29  L.  ed.  179,  5  S.  C.  949. 
§  2SS.  '  United  States  v.  Bassett,  5  Utah, 

='Claw8on   V.   United   States,    114  131,  13  Pac.  237. 
232 


CHAPTER  XXX 

CONDUCT  OF  TRIAL  JUDGE 

§  288.  The  Duties  of  the  Trial  Judge. 

§289.  PubHc  Sessions. 

§  290.  Shackling  a  Prisoner  in  Court. 

§  291.  Excluding  Witnesses  from  Court  Room. 

§  292.  Excluding  Jury  during  Argument  on  Admissibility  of  Evidence. 

§  293.  The  Trial  Judge  Should  Abstain  from  Making  Prejudicial  Remarks 

during  the  Course  of  the  Trial. 

§  294.  Withdrawal  of  Objectionable  Remarks. 

§  295.  Calling  on  the  Defendant  to  Produce  Documents. 

§  296.  Organization  of  Court. 

§  288.  The  Duties  of  the  Trial  Judge. 

It  is  the  duty  of  the  trial  judge  to  regulate  the  procedure  at 
the  trial  in  a  fair  and  impartial  manner  in  accordance  with  the 
rules  of  evidence  and  to  facilitate  its  orderly  progress.^  A  trial 
judge  should  not  show  any  partiality.  He  should  not  make  any 
remarks  to  embarrass  the  defendant,  belittle  counsel,  or  hinder 
the  jury  in  the  performance  of  its  duty.  Neither  should  he 
directly  or  indirectly  show  a  leaning  toward  one  side  or  the  other .^ 
In  ruling  on  exceptions  the  court  should  not  display  undue  irri- 

§  288.  1  Rudd    v.    United    States,  22    (6th   Cir.) ;     McDuff  v.   Detroit 

173  Fed.  912,  97  C.  C.   A.   462  (8th  Evening  Journal  Co.,  84  Michigan, 

Cir.) ;    Adler  v.   United  States,    182  1,  47  N.  W.  671 ;  Shakman  v.  Potter, 

Fed.  464,  104  C.  C.  A.  608  (5th  Cir.) ;  98  la.  61,  66  N.  W.   1045 ;    Mcln- 

Kettenbach    v.    United    States,    202  tosh  v.  Mcintosh,  79  Michigan,  198 ; 

Fed.  377,  120  C.  C.  A.  505  (9th  Cir.).  44  N.  W.  592;  Tuchfeld  v.  Plattner, 

i^Rudd    V.    United     States,     173  116    N.    Y.    Sup.    693;     People    v. 

Fed.  912,  97  C.  C.  A.  462  (8th  Cir.) ;  Leonzo,  181  Michigan,  41,  147  N.  W. 

Adler   v.    United    States,    182    Fed.  543 ;    People  v.  Ruef,   14  California 

464,   104  C.  C.  A.  608   (5th  Cir.);  App.  576,  114  Pac.  54 ;  Oppenheim  v. 

Chicago   City   Ry.    Co.   v.   Cooney,  United  States,  241  Fed.  625,  154  C. 

95  111.  App.  471,  affirmed  196  Illinois,  C.  A.  378  (2  Cir.)  ;  AlUson  v.  United 

466,  63  N.  E.  1029 ;  Mullen  v.  United  States,  160  U.  S.  203,  40  L.  ed.  395, 

States,   106  Fed.  892",  46  C.  C.  A.  16  S.  C.  252. 

233 


§  288]  CONDUCT   OF   TRIAL   JUDGE  [Chap.  XXX 

tation.^  The  trial  judge  may,  in  the  exercise  of  his  sound  dis- 
cretion, propound  questions  to  the  witnesses  when  he  deems  it 
essential  to  the  development  of  the  facts  of  the  case.^  However, 
this  must  not  be  construed  to  mean  that  the  trial  judge  can  take 
upon  himself  the  burden  of  cross-examining  the  defendant's 
witnesses  when  the  government  is  represented  by  counsel.^ 
Private  communications  between  court  and  jury  are  improper,  not 
having  been  made  in  open  court. ^  A  learned  Judge  said :  "  One 
of  the  greatest  difficulties  of  a  nisi  jprius  judge  is  to  keep  his  mouth 
shut.     I  had  twenty-five  years  of  it  myself."  "^ 

§  289.  Public  Sessions. 

A  most  unusual  opinion  was  handed  down  recently  in  the  Eighth 
Circuit.  Toward  the  close  of  a  long  trial,  —  the  defendants  being 
charged  with  robbing  a  train,  it  was  agreed  that  a  session  should 
be  held  that  evening.  Until  this  time  the  sessions  were  absolutely 
public ;  the  time  had  approached  for  the  arguments  to  the  jury. 
There  was  great  ill-feeling  between  the  defendants'  relatives  and 
the  witnesses  for  the  prosecution,  so  much  so,  that  the  witnesses 
had  to  be  placed  in  the  care  of  an  officer.  The  same  evening  one 
of  the  witnesses  was  struck  in  the  face  by  a  relative  of  one  of  the 
defendants  while  the  former  was  at  a  restaurant.  In  view  of  these 
facts,  the  trial  judge  ordered  the  court  room  cleared  of  all  spectators 
except  relatives  of  the  defendants,  newspaper  men,  and  members 
of  the  bar.  Notwithstanding  the  judge's  order,  the  bailiff  ad- 
mitted some  twenty-five  of  his  friends  but  refused  admission  to 
others  though  there  were  many  vacant  seats  remaining.  The 
Circuit  Court  of  Appeals  held  that  the  defendant  was  deprived 
of  a  public  trial  as  guaranteed  by  the  Sixth  Amendment  and  there- 
fore implied  that  the  rights  of  the  defendants  were  prejudiced 
by  the  actions  of  the  trial  judge.^ 

3  State  V.  Cross,  53  Oregon,  462,  » Adler  v.  United  States,  182  Fed. 

101  Pac.  193.  464,  104  C.  C.  A.  608  (5th  Cir.). 

*  MU'.r  V.  United  States,  182  Fed.  «  Dodge    v.    United    States,    258 

464,   104  C.  C.  A.  608   (5th  Cir.) ;  Fed.  300  (C.  C.  A.  2d  Cir.). 

Kettenbach  ?;.  United  States,  202  Fed.  ''Gary,    J.,  in   Kane   v.    Kinnare, 

377,   120  C.  C.  A.  505   (9th  Cir.) ;  69  111.  App.  81. 

State  V.  Pagels,  92  Mo.  300,  4  S.  W.  §  289.   i  Davis  t;.  United  States,  247 

931.  Fed.  394,  1.59  C.  C.  A.  448  (8th  Cir.). 

234 


Chap.  XXX]      EXCLUDING    WITNESSES    FROM   COURT   ROOM        [§  291 

§  290.   Shackling  a  Prisoner  in  Court. 

The  rule  in  the  United  States  has  always  been  that  a  prisoner 
must  be  brought  into  court  without  shackles  regardless  of  the 
nature  of  the  crime.  This  rule  is  founded  on  broad  humanitarian 
principles  and  is  invoked  to  avoid  the  attendant  pain  and  em- 
barrassment which  would  prejudice  the  accused  when  he  is  on 
trial  for  his  life  and  liberty.  There  is  but  one  exception  to  this 
rule,  namely,  when  it  is  evident  that  the  prisoner  is  attempting 
or  contemplating  escape,  "  then  he  may  be  brought  with  irons."  ^ 
In  the  case  of  Rex  v.  Rogers,  et  al.,^  tried  before  the  King's  Bench, 
the  defendants  were  indicted  for  murder  and  found  guilty.  At  the 
end  of  the  decision  there  is  a  memorandum :  "  These  desperate 
fellows  remained  chained  together  during  this  whole  proceeding." 
All  of  the  American  appellate  tribunals  disapprove  the  practice 
of  shackling  prisoners  and  quote  Blackstone,  Hale  and  Coke  to 
support  their  opinion.  They  evince  an  anxiety  to  do  complete 
justice  to  the  prisoner,  but  as  yet  have  not  decided  whether 
shackling  a  prisoner  in  the  presence  of  the  jury  is  reversible  error. 
Some  courts  have  held  that  whether  a  prisoner  should  be  shackled 
or  not  at  the  trial  is  a  matter  resting  in  the  sound  discretion  of  the 
trial  court,  and  is  not  reviewable.^  On  the  other  hand,  other 
courts  have  held  that  shackling  a  prisoner  without  sufficient  cause 
is  reversible  error.^  It  was  held  not  to  be  reversible  error  to 
shackle  a  prisoner  at  the  arraignment,^  or  while  he  was  in  the 
presence  of  his  attorney  after  court  had  adjourned,^  or  in  the 
presence  of  some  jurymen  before  the  court  convened.'' 

§  291.   Excluding  Witnesses  from  Court  Room. 

It  is  discretionary  with  the  court  to  exclude  witnesses  from  the 

court  room  while  another  witness  is  testifying.^ 

§  290.    1  Blackstone's   Commenta-  ^  Parker  v.   Territory,   5  Arizona, 

ties,   Book  4,   Chapter    30,   p.   322;  283,  52  Pac.  3G1. 
3  Coke's  Institutes  34 ;   2  Hale  Pleas  ^  gt^te   v.   Craft,    164    Mo.   631, 

of  the  Crown,  219.  65  S.  W.  280. 

2  3  Burrows,  1809.  ''  Hauser  v.  People,  210    111.  253, 

3  Lee  V.  State,  51  Mississippi,  566 ;  71  N.  E.  416. 

Faire  v.  State,  58  Alabama,  74.  §  291.   i  Bromberger     v.     United 

^  State  i;.  Williams,   18  Washing-      States,  128  Fed.  346,  63  C.  C.  A.  76 
ton,    47,   50    Pac.   580;    Harrington      (2d  Cir.). 
V.  Minor,  42  California,  165;    State 
V.  Ki'mg,  64  Mo.  591.  ^ 

235 


§  292]  CONDUCT  OF  TRIAL  JUDGE  [Chap.  XXX 

§  292.  Excluding  Jury  during  Argument  on  Admissibility  of 
Evidence. 

The  prudent  course  is  to  exclude  the  jury  during  discussions, 
such  for  instance  as  the  questions  of  admissibility  of  a  confession, 
but  the  conduct  of  the  trial  on  such  matters  is  largely  within  the 
discretion  of  the  trial  court  .^ 

§  293.  The  Trial  Judge  Should  Abstain  from  Making  Preju- 
dicial Remarks  during  the  Course  of  the  Trial. ^ 

The  defendant  is  entitled  to  the  presumption  of  innocence  by 
both  judge  and  jury  until  his  guilt  is  proved.  If  the  jury  is 
inadvertently  led  to  believe  that  the  judge  does  not  regard  that 
presumption,  they  must  be  told  to  disregard  it.^  Thus,  a  remark 
by  the  court  that  the  accused  "  could  not  hide  behind  their  (the 
directors')  skirts  "  was  held  to  be  reversible  error.  So,  when 
counsel  for  the  defendant  asked  a  juror  under  examination  whether 
he  had  any  opinion  as  to  the  guilt  or  innocence  of  the  defendant, 
who  was  charged  jointly  with  another  defendant,  the  court  inter- 
jected the  statement,  "  That  is  one  of  the  things  that  is  an  estab- 
lished fact  in  the  community  " ;  the  Circuit  Court  of  Appeals 
held  the  remark  uncalled  for  and  reversed  the  judgment  of  con- 
viction.^ It  was  held  to  be  proper  for  the  trial  judge  to  explain 
to  the  witness  that  there  was  no  reason  why  she  should  be  afraid 
to  testify  and  to  call  the  defendant's  paramour  who  was  testifying 
for  the  government,  "  Little  girl."  *  In  a  prosecution  for  falsify- 
ing reports  to  the  Comptroller  of  the  Currency,  the  district  attorney 
submitted  the  report  in  evidence.  One  space  on  the  report  which 
called  for  an  answer  was  left  unfilled  by  the  defendant.  The  court 
remarked,  "  The  report  shows  blank  and  that  is  reporting  nothing 
as  a  matter  of  fact."  This  remark  was  held  not  to  be  objection- 
able.^   Likewise,  it  was  held  to  be  proper  for  the  trial  judge  to 

§  292.   1  Holt    V.    United    States,  «  Adler  v.  United  States,  182  Fed. 

218  U.  S.  245,  54  L.  ed.  1021, 31 S.  C.  2.  464,  104  C.  C.  A.  608  (5th  Cir.). 

§  293.    '  See  also  charge  of  the  '  Hawkins  v.   United  States,    116 

COURT.     Sandals    v.    United    States,  Fed.  569,  53  C.  C.  A.  663  (9th  Cir.). 

213  Fed.  569,  130  C.  C.  A.  149  (6th  <  Wong  Goon  Let  v.  United  States, 

Cir.) ;    McDuff  v.   Detroit  Evening  245  Fed.  745,  158  C.  C.  A.  147  (9th 

Journal,  84  Michigan,   1,  47  N.  W.  Cir.). 

671 ;    Allen  v.  Kidd,  197  Mass.  256,  ^  Kettenbach  v.  United  States,  202 

84  N.  E.  122.  Fed.  377,  120  C.  C.  A.  505  (9th Cir.). 

23G 


Chap.  XXX]  PREJUDICIAL  remarks  [§  293 

say  to  the  jury  after  denying  their  request  to  be  discharged  with- 
out having  agreed  upon  a  verdict,  "  I  regard  the  testimony  as 
convincing."  ^  And  it  has  also  been  held  that  a  court  of  the 
United  States  in  submitting  a  case  to  the  jury  may,  in  its  dis- 
cretion, express  its  opinion  upon  the  facts  and  that  such  an  opinion 
is  not  reviewable  upon  error  so  long  as  no  rule  of  law  is  incorrectly 
stated  and  all  matters  of  fact  are  ultimately  submitted  to  the 
determination  of  the  jury.  The  court  may  do  this  both  during 
the  trial  and  in  its  final  charge.^  In  a  recent  case  ^  the  United 
States  Circuit  Court  of  Appeals  for  the  Fourth  Circuit  over- 
stepped all  boundaries  and  held  that  the  comment  of  the  court 
before  the  jury  that  in  his  opinion  the  defendant  was  absolutely 
guilty  was  not  improper,  when  qualified  with  the  statement  that 
the  jurors  are  the  sole  judges  of  the  facts,  but  the  court  reversed 
the  judgment  because  the  trial  judge  refused  to  permit  the  defend- 
ant's attorney  to  advise  the  jury  that  they  are  not  bound  by  the 
court's  opinion.  On  the  other  hand,  the  same  court  in  an  earlier 
case  ^  held  it  to  be  reversible  error  for  the  court  to  remark  when 
the  jury  reported  that  it  could  not  agree  upon  a  verdict,  "  I  believe 
the  defendant  is  guilty  but  the  jury  is  not  bound  by  this  opinion." 
While  considerable  latitude  is  allowed  trial  judges  in  the  matter 
of  commenting  on  the  facts,  they  must  not  assume  the  functions 
of  prosecuting  attorneys.  Thus,  when  the  court  remarked, 
"  The  defendant  says  that  it  is  not  his  handwriting ;  no  expert 
evidence  has  been  introduced  here  on  behalf  of  the  defendant 
for  the  purpose  of  showing  that  the  address  on  the  letter  was  not 
in  his  handwriting  as  he  might  have  done.  Failure  to  do  so 
justifies  a  presumption  that  experts  would  not  have  so  testified." 

•Simmons  v.  United  States,   142  L.  ed.  389,  9  S.  C.  57;   Simmons  v. 

U.  S.  148,  35  L.  ed.  968,  12  S.  C.  171.  United  States,  142  U.  S.  148,  35  L. 

But    compare,    Reynold    v.    United  ed.  968,  12  S.  C.  171 ;  Shea  v.  United 

States,  98  U.  S.  145,  25  L.  ed.  244;  States,  251  Fed.  440,  163  C.  C.  A. 

Starr  v.   United  States,    153   U.   S.  458  (6th  Cir.) ;  Jelke  v.  United  States, 

614,  38  L.  ed.  841,   14  S.  C.  919;  255  Fed.  264,  —  C,  C.  A.  —  (7th 

Lynon  v.  People,  188  111.  625;  Cun-  Cir.). 

ningham  v.  People,  195  111.  550.  «  Morse    v.    United    States,    255 

^  United  States  v.  PhUadelphia  &  Fed.  681,  —  C.  C.  A.  —  (4th  Cir.). 

Reading  R.  R.  Co.,  123  U.  S.  113,  See  also  charge  to  jury. 

31  L.  ed.  138,  8  S.  C.  77 ;    Lovejoy  » Foster    v.    United    States,     188 

V.  United  States,  128  U.  S.  171,  32  Fed.  305,  111  C.  C.  A.  37  (4th  Cir.). 

237 


§  293]  CONDUCT   OF   TRIAL   JUDGE  [Chap.  XXX 

The  Circuit  Court  of  Appeals  for  the  Eighth  Circuit  held  such 
comment  to  be  very  objectionable  and  sufficient  for  reversing 
judgment  although  the  court  told  the  jury  that  the  burden  of 
proving  the  defendant  guilty  rested  on  the  prosecution. ^°  It  was 
held  to  be  reversible  error  for  the  court  to  say  to  the  jury :  "  If 
the  jury  convicts  the  defendant,  the  judge  himself  comes  in  as  a 
supplementary  jury,  you  might  call  it,  and  can  set  it  aside,  be- 
cause he  did  not  agree  with  it ;  but  if  you  acquit  him  and  an  error 
is  made  in  the  verdict,  that  is  an  end  of  the  possibility  of  the 
judge  correcting  any  errors."  ^^  In  a  prosecution  for  murder,  the 
district  attorney  commented  on  the  absence  of  the  defendant's 
wife.  Since  a  wife  cannot  testify  for  or  against  her  husband  in 
the  Federal  courts,  the  United  States  Supreme  Court  held  that 
failure  by  the  trial  judge  to  make  this  known  to  the  jury  was 
equal  to  a  charge  that  it  was  a  circumstance  against  the  defendant 
that  he  had  failed  to  produce  his  wife  in  court.^^  In  an  indictment 
under  Section  215  of  the  Penal  Code,  it  was  held  to  be  error  for 
the  court  to  comment  upon  the  nonproduction  of  letters,  as  this 
was  in  derogation  of  the  constitutional  right  of  the  accused  to 
furnish  no  evidence  in  aid  of  the  prosecution.^^ 

§  294.  Withdrawal  of  Objectionable  Remarks. 

All  comments  by  the  court  should  be  judicial  and  dispassionate, 
and  a  mere  withdrawal  of  the  remarks  is  not  always  sufficient  to 
remove  the  effect.  Where  the  remarks  of  the  court  were  of  such 
an  emphatic  nature  that  the  jury  may  have  believed  that  a 
finding  for  the  defendant  would  subject  them  to  ridicule,  a  mere 
withdrawal  of  such  language,  and  a  direction  that  the  question  is 
for  them,  may  be  of  doubtful  sufficiency  to  correct  the  impression 
and  in  such  cases  the  remedy  is  a  new  trial  .^ 

loPerarat;.  United  States,  221  Fed.  Cir.) ;    Rudd  v.  United  States,   173 

213,  136  C.  C.  A.  623  (8th  Cir.).  Fed.    914;     Vicksburg    &    Meridan 

"  Adler  v.  United  States,  182  Fed.  Railroad  Co.  v.  Putnam,  118  U.  S. 

464,  104  C.  C.  A.  608  (5th  Cir.).  545,  30  L.  ed.  257,  7  S.  C.  1 ;   Haupt 

'2  Graves   t;.    United   States,    150  v.  Utah,  110  U.  S.  574,  28  L.  ed.  262, 

U.  S.  118,  37  L.  ed.  1021,  14  S.  C.  40.  4  S.  C.  202 ;  Foster  v.  United  States, 

"  Hibbard  v.  United  States,   172  188  Fed.  305,  111  C.  C.  A.  37  (4th 

Fed.  66,  96  C.  C.  A.  554  (7th  Cir.).  Cir.) ;    Adler  v.  United  States,   182 

§  294.   »  Sandals  v.  United  States,  Fed.   464,    104  C.   C.   A.   505    (9th 

213  Fed.  569,  130  C.  C.  A.  149  (6th  Cir.). 
238 


Chap.  XXX]  ORGANIZATION   OF   COURT  [§  296 

§  295.   Calling  on  the  Defendant  to  Produce  Documents. 

It  is  reversible  error  for  the  trial  court  to  permit  the  defendant 
to  be  called  upon,  in  the  presence  of  the  jury,  to  produce  an  alleged 
original  document  of  an  incriminating  character.  Such  conduct 
is  equal  to  compelling  a  defendant  to  give  evidence  against  him- 
self, which  is  prohibited  under  the  Fifth  Amendment.^  -It  is  not, 
however,  error  for  the  court  to  stop  counsel  in  the  midst  of  his 
argument,  in  a  criminal  case,  for  the  purpose  of  pointing  out  to  him 
that  his  argument  is  based  on  an  assumption  of  fact  which  does 
not  in  fact  exist  .^ 

§  296.   Organization  of  Court. 

The  acts  and  rulings  of  a  de  facto  judge  cannot  be  inquired  into 
collaterally.^  The  Court  will  not  stop  to  inquire  whether  the 
jury  was  actually  influenced  by  the  conduct  of  the  judge.  All  the 
authorities  hold  that  if  they  were  exposed  to  improper  influences, 
which  might  have  produced  the  verdict,  the  presumption  of  law 
is  against  its  purity.^ 

§  295.   1  McKnight      v.      United  §  296.   ^  Ball    v.    United    States, 

States,  115  Fed.  972,  54  C.  C.  A.  358  140  U.  S.  118,  35  L.  ed.  377,  11  S.  C. 

(6th  Cir.),  S.  C. ;  122  Fed.  92G,  61  C.  761. 
C.  A.  112  (6th  Cir.).  2  Green   v.   State,   97   Miss.   834, 

2  United  States  v.  Heath,  19  Wash.  838,  53  So.  415. 
Law  Rep.  818,  9  Mackey  (20  D.  C), 
272. 


239 


CHAPTER  XXXI 

CONDUCT  OF  DISTRICT  ATTORNEY 

§  297.    Conduct  of  Prosecuting  Attorney. 

§  298.    Remarks  by  District  Attorney. 

§  299.   Objection  to  the  District  Attorney's  Misconduct. 

§  297.   Conduct  of  Prosecuting  Attorney. 

The  prosecuting  attorney  is  a  quasi  judicial  officer  and  not  a 
mere  prosecutor.^  It  is  his  duty  to  be  fair  to  the  defendant  and 
not  to  make  any  remarks  which  are  not  borne  out  by  the  testimony ; 
in  every  criminal  case  the  crime  must  be  proved  as  laid  in  the 
indictment.^  The  Government  seeks  only  equal  and  impartial 
justice.  For  this  reason  the  prosecuting  attorney  must  act 
impartially.^ 

§  298.   Remarks  by  District  Attorney. 

It  is  improper  for  the  district  attorney  to  inject  irrelevant 
oratorical  phrases  in  the  course  of  the  trial  which  lend  dramatic 
effect  to  his  cause,  but  which  in  nowise  sustain  the  prosecution. 
The  United  States  Supreme  Court  in  a  prosecution  for  extortion 
from  Chinese  women  reversed  a  conviction  because  the  district 
attorney,  during  a  discussion  between  the  court  and  the  defend- 
ant's attorney  as  to  the  relevancy  of  certain  evidence,  interjected 

§  297.   1  People  v.  Bemis,  51  Mich.  2  Rabens   v.    United    States,    146 

422,  16  N.  W.  794 ;   People  v.  Field-  Fed.  978,  77  C.  C.  A.  224  (4th  Cir.) ; 

ing,  158  N.  Y.  542,  547,  53  N.  E.  Lancaster  v.  United  States,  44  Fed. 

497;    People  v.  Davenport,  13  Cal.  896;    Marrin  v.  United  States,   167 

632,  110  Pac,  318;   State  v.  Black-  Fed.  951,  93  C.  C.  A.  351  (3d  Cir.), 

man,  108  La.  121,  32  So.  334;  State  223  U.  S.  719,  56  L.  ed.  629,  32  S.  C. 

V.  Warford,  100  Mo.  .55,  10  S.  W.  886;  523;    Hall  v.  United  States,  150  U. 

State    V.    Osborn,    .54    Oregon,    289,  S.  76,  37  L.  cd.  1003,  14  S.  C.  22. 
103  Pac.  627;  Fitter  t).  United  States,  »  Commonwealth    v.    Nicely,    130 

258  Fed.  567,  —  C.  C.  A.  —  (2d  Pa.    261,    270;     Commonwealth    v. 

Cir.).  Shoemaker,  240  Pa.  St.  255. 

240 


Chap.  XXXI]         REMARKS   BY   DISTRICT   ATTORNEY  [§  298 

the  remark,  "  No  doubt  every  Chinese  woman,  who  did  not  pay 
WilHams  (defendant)  was  sent  back."  ^  If  the  prosecuting  attorney 
indulges  in  statements  prejudicial  to  the  defendant,  w^iich  in  the 
course  of  the  trial  he  finds  that  he  cannot  substantiate,  it  is  his 
paramount  duty  to  retract  them  before  the  close  of  the  trial ;  ^ 
nor  may  the  district  attorney  make  inferences  of  fact  or  of  law 
from  premises  which  are  uncertain.^  This  rule  is  grounded  on 
the  presumption  that  any  reference  to  matters  collateral  to  the 
issue  might  influence  the  jury  against  the  defendant ;  whereas,  it  is 
the  jury's  duty  to  determine  questions  in  issue  upon  the  facts 
presented  at  the  trial  without  bias  against  either  of  the  contending 
parties.  It  was  therefore  held  to  be  error  for  the  prosecuting 
attorney  on  cross-examination  of  the  defendant  in  a  prosecution 
for  using  the  mails  to  defraud,  to  question  the  defendant  about 
property  that  he  owned  at  the  time  of  the  alleged  offense.^  It  is 
improper  for  the  district  attorney  in  the  course  of  the  second 
trial  to  refer  to  the  former  conviction  of  a  defendant;  papers 
showing  this  fact  should  not  be  sent  to  the  jury  room.^  But  a 
prosecuting  attorney  is  privileged  to  mention  that  a  codefendant 
pleaded  guilty  when  the  latter's  testimony  was  received  without 
any  objection.^  Accordingly,  a  remark  by  the  United  States 
attorney  that  no  friend  of  the  defendant  or  citizen  appeared  to 
testify  as  to  the  defendant's  patriotism  was  held  to  be  reversible 
error.^  It  is  improper  for  the  district  attorney  to  comment  on 
the  defendant's  failure  to  testify,^  or  at  any  stage  of  the  case  to 
tell  the  jury  what  other  juries  have  done  in  similar  cases.^  While 
the  propriety  of  asking  leading  questions  lies  within  the  sound 

§298.   1  Williams  i).  United  States,  588;    Ogden   v.   United   States,    112 

168  U.  S.  382,  42  L.  ed.  509,  18  S.  C.  Fed.  523,  50  C.  C.  A.  380  (3d  Cir.). 
92.  « Cooper    v.    United    States,    232 

2  Johnson  v.   United   States,    215  Fed.  81,  146  C.  C.  A.  273  (2d  Cir.) ; 
Fed.  679,  131  C.  C.  A.  613  (7th  Cir.).  Writ  of  Certiorari  denied  in  241   U. 

3  Richard   v.   United   States,    175  S.  675,  60  L.  ed.  1232,  36  S.  C.  725. 
Fed.  911,  99  C.  C.  A.  401  (8th  Cir.) ;  ^  HaU  v.  United  States,  256  Fed. 
United  States  v.  Rose,  92  U.  S.  281,  748,  —  C.  C.  A.  —  (4th  Cir.). 

23  L.  ed.  707.  » Stout  v.  United  States,  227  Fed. 

*  Culver    V.    United    States,    257  799,  142  C.  C.  A.  323  (8th  Cir.). 
Fed.  163,  —  C.  C.  A.  —  (8th  Cir.).  »  Mclvibben  v.  Philadelphia  R.  R. 

5  Holmgren  v.  United  States,  217  Co.,  251  Fed.  577,  163  C.  C.  A.  571 

U.  S.  509,  520,  34  L.  e'd.  30,  30  S.  C.  (3d  Cir.). 

VOL.  1  —  16  241 


298] 


CONDUCT  OF  DISTRICT  ATTORNEY        [Chap.  XXXI 


discretion  of  the  trial  judge,  it  is  prejudicial  error  for  the  district 
attorney  to  ask  leading  questions  of  his  own  witnesses  which  sug- 
gest the  answers  and  of  themselves  call  merely  for  a  conclusion  of 
the  witness. ^° 

§  299.   Objection  to  the  District  Attorney's  Misconduct. 

The  defendant  should  object  to  any  misconduct  on  the  part 
of  the  district  attorney  and  if  his  objection  is  not  sustained,  he 
should  take  exception  to  the  court's  ruling,^  because  improper 
remarks  by  the  district  attorney  may  often  be  cured  by  a  definitive 
instruction  to  the  jury  to  disregard  them.^  Under  some  decisions 
the  defendant  could  not  as  of  right  take  advantage  of  the  district 
attorney's  misconduct  on  a  motion  for  a  new  trial. ^  The  better 
practice  is  to  object  to  misconduct  of  the  district  attorney  at  the 
trial ;  nevertheless,  when  the  defense  inadvertently  omits  to  do  so, 
it  becomes  the  duty  of  the  trial  judge,  under  a  recent  statute,^ 
on  a  motion  for  a  new  trial  to  consider  the  propriety  of  the  argu- 
ment of  the  district  attorney  without  regard  to  objection  or 
exceptions.^ 


"  Nurnberger  v.  United  States, 
156  Fed.  721,  84  C.  C.  A.  377  (8th 
Cir.). 

§  299.  1  Wilson  v.  United  States, 
149  U.  S.  60,  37  L.  ed.  650,  13  S.  C. 
765. 

2  United  States  v.  Snyder,  14  Fed. 
554;  Warren  v.  United  States,  250 
Fed.  89,  162  C.  C.  A.  261  (8th 
Cir.). 


3  Smith  V.  United  States,  231  Fed. 
25,  145  C.  C.  A.  213  (9th  Cir.); 
Chadwick  v.  United  States,  141  Fed. 
225,  72  C.  C.  A.  343  (6th  Cir.); 
Crumpton  v.  United  States,  138  U. 
S.  361,  34  L.  ed.  954,  11  S.  C.  355. 

^Act  of  Feb.  26,  1919,  ch.  48, 
amending  §  269  of  the  Judicial  Code. 

'  August  V.  United  States,  257 
Fed.  388,  —  C.  C.  A.  —  (8th  Cir.). 


242 


CHAPTER  XXXII 
EVIDENCE 

IN   GENERAL 

§  300.      Rules  of  Evidence  in  United  States  Courts  in  Criminal  Cases  — 

Competency. 
§  301.      Definitions. 

JUDICIAL   NOTICE 

§  302.  In  General. 

§  303.  Public  Laws  —  Federal  Laws. 

§  304.  State  Laws. 

§  305.  Foreign  Laws. 

§  306.  Departmental  Regulations. 

§  307.  Acts  of  Public  Officers. 

§  308.  Proceedings  and  Records  of  Federal  Courts. 

§  309.  Facts  of  General  Knowledge. 

§  309  a.  Evidence  of  Marriage. 

§  309  h.  Records  of  Governmental  Departments. 

MATERIALITY   AND   COMPETENCY 

§  310.      Evidence  Admitted. 

§311.      Evidence  Which   Should   Be   Excluded  —  Testimony  before   Con- 
gressional Committees. 
§  312.      Motive  of  Accused. 

BURDEN   OF   PROOF 

§  313.  Generally. 

§  314.  Matters  of  Defense. 

§  315.  Corpus  DeHcti. 

§  316.  Reasonable  Doubt. 

LEGAL   PRESUMPTIONS 

§  317.      In  General  —  Definition. 

§  318.      Presumption  as  to  Innocence. 

§  319.      Presumption  as  to  Character. 

243 


EVIDENCE  [Chap.  XXXII 

§  319  a.  Good  Character,  How  Proven. 

§  320.  Presumption  of  Continuation. 

§  321.  Presumptions  of  Knowledge. 

§  322.  Presumptions  —  Regularity  of  Public  Coiu"ts,  Officers'  Acts,  etc. 

§  323.  Presumptions  from  Failure  to  Produce  Evidence  or  to  Testify  One's 

Self. 

§  324.  Presumptions  from  Possession  of  Property. 

CONFESSIONS 

§  325.  Definition  and  Classification  —  Voluntary  Statements. 

§  326.  Involuntary  Statements. 

§  327.  Confessions  under  Arrest,  under  Suspicion  —  Warning. 

§  328.  Preliminary  Inquiry  by  the  Court. 

§  329.  Whether  Voluntary  or  Involuntary  —  For  Court  or  Jury  ? 

§  330.  Offer  in  Entirety. 

§  331.  Necessity  for  Corroboration. 

§  332.  Subsequent  Confessions. 

§  333.  Confessions  Made  under  Oath. 

§  334.  Confessions  of  Third  Parties. 

§  335.  Matters  of  Procedure. 

§  336.  Value  as  Evidence. 

§  337.  Insanity  as  a  Defense  —  Drunkenness  —  Delirium  Tremens. 

§  338.  Insanity,  Burden  of  Proof. 

RES   GEST^ 

§  339.  General  Principles. 

§  340.  Time. 

§  341.  Feelings,  Demeanor,  Business  Relations  and  Circumstances. 

§  342.  Letters  and  Other  Documents. 

§  343.  Statements  of  Third  Person. 

CIRCUMSTANTIAL  EVIDENCK 

§  344.  Definition. 

§  345.  Reception. 

§  346.  Identity. 

§  347.  Corpus  Delicti. 

§  348.  Weight. 

§  349.  Decoy  Letters. 

§  3.50.  AHbi  —  Burden  of  Proof. 

§  351.  Traces  of  Guilt,  etc. 

§  352.  Flight  of  Accused  —  Raises  No  Presumption  of  Guilt. 

§  353.  Threats  of  Deceased. 

§  354.  Threats  of  Accused. 

§  355.  Threats  of  Third  Person  as  Res  Gcstcr  in  Favor  of  Defendant. 
244 


Chap.  XXXII]  CIRCUMSTANTIAL    EVIDENCE 

EVIDENCE   OF   OTHER   OFFENSES 

§  356.  General  Rule. 

§  357.  Exceptions  to  Rule. 

§  358.  Motive. 

§  359.  The  Marshall  Case. 

§  360.  Limit  to  Admissibility  of  Proof  of  Other  Offenses. 

COMPETENCY   OF   WITNESSES 

§  361.  Conviction  of  Crime. 

§  362.  Codefendants. 

§  363.  Husband  and  Wife. 

§  364.  Religious  Belief,  Interest,  etc. 

IMPEACHING   AND   SUSTAINING   WITNESSES 

§  365.  Impeachment  Testimony  in  General  —  Reward. 

§  366.  By  Former  Conviction. 

§  367.  Bad  Character  of  Witness. 

§  368.  By  Indictment. 

§  369.  The  Impeaching  Question. 

§  370.  Collateral  Issues. 

§  371.  Binding  Character  of  Evidence. 

CREDIBILITY,    WEIGHT  AND   SUFFICIENCY 

§  372.       Credibility  of  Witnesses  for  Jury. 

§  373.       Weight  and  Sufficiency  of  Evidence  for  Jury. 

§  373  a.   Evidence  —  Number  of  Witnesses. 

accomplices'  testimony 

§  374.      Corroboration  of  Accomplice. 

§  375.      Evidence  of  Co-Conspirafors  —  When  Admissible. 

DIRECT   AND   CROSS-EXAMINATION 

§  376.  Leading  Questions  on  Direct  Examination. 

§  377.  Surprise,  etc. 

§  378.  Form  of  Question. 

§  379.  Leading  Questions  on  Cross-Examination. 

§  380.  Refreshing  Memory. 

§  381.  Right  to  Cross-Examination. 

§  382.  Scope  of  Cross-Examination. 

§  383.  Inconsistent  Statements. 

§  384.  Wliat  Will  Not  Prevent  Cross-Examination. 

§  385.  Limitations  and  Scope  of  Cross-Examination. 

§  386.  Instances. 


245 


EVIDENCE  [Chap.  XXXII 

§  387.  The  Defendant  as  a  Witness. 

§  388.  Defendant  Cannot  Be  Required  to  Furnish  Original  Evidence. 

§  389.  Examination  of  the  Defendant. 

§  390.  Cross-Examination  of  Witnesses  Called  by  Court. 

EXAMINATION   BY   COURT 

§  391.       Improper  Catechism  by  Court. 

EXPERT  AND   OPINION   EVIDENCE 

§  392.  In  General. 

§  393.  Instances. 

§  394.  Distinctions. 

§  395.  Nonexpert  Opinion  Evidence. 

§  396.  Medical  Expert  Testimony. 

§  397.  On  Handwriting. 

§  398.  Cross-Exaroination  of  Experts. 

§  399.  Undue  Restrictions  of  Cross-Examination  of  Expert  Witnesses. 

PRIVILEGED   COMMUNICATIONS 

§  400.  Mode  of  Transmission. 

§  401.  Waiver. 

§  402.  PubUc  Ofncers. 

§  403.  Grand  Jurors. 

§  404.  Husband  and  Wife. 

§  405.  Attorney  and  Client. 

§  406.  Physician  and  Patient. 

HEAESAY   EVIDENCE 

§  407.      General  Rule. 

§  408.       Dying  Declarations. 

BEST  AND   SECONDARY   EVIDENCE 

§  409.  Definition  and  General  Rule. 

§  410.  Applications  of  the  Rule. 

§  411.  Public  Records  and  Books  of  Account. 

§  412.  •  Letters  and  Telegrams. 

DEMONSTRATIVE   EVIDENCE 

§  413.      Generally. 

§  414.      Experiments  in  Court. 

VARIANCE 

§  415.       Generally. 
§410.       Instances  of  Variance. 
§  417.      Second  Trial.  _ 
246 


Chap.  XXXII]  WHAT   LAW   CONTROLS  [§  300 


IN    GENERAL 

§  300.  Rules  of  Evidence  in  United  States  Courts  in  Criminal 
Cases  —  Competency. 

The  competency  of  witnesses  to  testify  in  criminal  cases  in 
courts  of  the  United  States  is  determined  by  the  common  law, 
except  where  Congress  in  special  cases  may  otherwise  provi(fe.^ 
The  principle  that,  until  Federal  legislation  is  had  to  modify  the 
practice,  "  the  rules  of  evidence  in  criminal  cases  "  in  the  Federal 
Courts  "  are  the  rules  which  were  in  force  in  the  respective  States 
when  the  Judiciary  Act  of  1789  was  passed,  was  announced  by 
Chief  Justice  Taney  in  United  States  v.  Reid,^  but  the  Reid  case 
was  expressly  overruled  in  a  recent  case  ^  and  it  was  there  held 
that  the  common  law  rule  disqualifying  witnesses  convicted  of 
crime  will  no  longer  be  followed  and  that  all  persons  of  competent 
understanding  will  be  permitted  to  testify  to  relevant  facts  within 
their  knowledge,  leaving  the  weight  and  credibility  of  such  evidence 
to  the  jury.  Section  858  of  the  Revised  Statutes  of  the  United 
States,  providing  that  the  laws  of  the  State  in  which  the  court  is 
held  "  shall  be  the  rules  of  decision  as  to  competency  of  witnesses 
in  the  courts  of  the  United  States  in  trials  at  common  law,  and 
equity  and  admiralty  ",  has  no  application  to  criminal  trials.^ 
It  is  perfectly  clear,  from  the  decisions  of  the  Supreme  Court  of 
the  United  States,  that  State  statutes  regulating  the  admission  of 
testimony  in  criminal  cases  have  no  application  in  the  trial  of  such 

§  300.   1  Logan  v.   United  States,  Many  rules  of  evidence  in  criminal 

144  U.  S.  263,  36  L.  ed.  429,  12  S.  C.  cases  not  contained  in  this  chapter 

617;    Maxey  v.   United  States,   207  have   been   prescribed    by    Congress 

Fed.  327,  125  C.  C.  A.  77  (8th  Cir.) ;  and  are  found  in  the  Act  creating 

Bandy   v.    United   States,    245   Fed.  the  offense  or  the  Penal  Code ;  there- 

98,    157   C.    C.    A.    394    (8th   Cir.);  fore,   it  is  advisable  to  consult  the 

Brown   v.    United   States,    233    Fed.  general    index    to    this    work,  which 

353,    147  C.   C.   A.  289   (6th  Cir.) ;  will  contain  a  reference  to  the  Act  or 

Pooler    V.    United    States,    127   Fed.  Penal  Code,  Volume  II  of  this  work. 
509,    62    C.    C.    A.    307   (1st  Cir.);  2 12   How.    (U.   S.)   364,   365,    13 

United  States  v.  Miller,  236  Fed.  798 ;  L.  ed.  1023. 

Cohen   V.    United   States,    214   Fed.  ^  Rosen    v.    United    States,     245 

23,  28,  130  C.  C.  A.  417  (9th  Cir.) ;  U.  S.  467,  469,  62  L.  ed.  406,  38  S. 

See   also   the    dissenting   opinion   in  C.  148. 

Rosen   v.   United   States,    237    Fed.  ■*  Logan  v.  United  States.  144  U. 

810,    151    C.   C.   A.,' 52    (2d   Cir.).  S.  263,  36  L.  ed.  429,  12  S.  C.  617. 

247 


§  300]  EVIDENCE  [Chap.  XXXII 

cases  in  Federal  Courts.^  As  to  States  whose  territories  were  not 
within  the  boundaries  of  the  Union  as  they  were  in  1789,  the  rule 
is  that  the  law  of  the  State  wJien  it  was  admitted  governs.^  But 
no  law  of  a  State,  made  since  1789,  can  affect  the  mode  of  pro- 
ceeding or  the  rules  of  evidence  in  criminal  cases. ^  The  test  in 
such  cases  is  what  local  law  obtained  at  the  time  of  the  creation  of 
the  State,  rather  than  that  which  obtained  at  the  time  of  the 
enactment  of  the  Judiciary  Act.^ 

§  301.   Definitions. 

"  Evidence  ",  as  defined  by  Blackstone,  "  signifies  that  which 
demonstrates,  makes  clear,  or  ascertains  the  truth  of  the  very 
point  in  issue,  either  on  the  one  side  or  on  the  other."  Briefly, 
it  is  the  means  by  which  facts  are  proved.^  Evidence,  as  part  of 
procedure,  signifies  those  rules  of  law  whereby  we  determine  what 
testimony  is  to  be  admitted  and  what  rejected  in  each  case,  and 
what  is  the  weight  to  be  given  to  the  testimony  admitted.^  The 
term  "  evidence  ",  in  a  criminal  case,  of  course,  includes  not  only 
that  offered  on  the  part  of  the  government,  but  that  also  offered 
for  the  defense.^ 

JUDICIAL  NOTICE 

§  302.  In  General. 

The  law  as  to  judicial  notice  is  similar  in  civil  and  criminal 
cases.     In  the  following  sections,  therefore,  only  those  cases  are 

5  Denning  v.   United  States,   247  (9th  Cir.),   citing  Ivnoell  j^.   United 

Fed.  463,  159  C.  C.  A.  517  (5th  Cir.),  States,  239  Fed.   16,   152  C.  C.  A. 

citing  United  States  v.  Logan,  supra,  66    (3d    Cir.) ;     Withaup    v.    United 

and  United  States  v.  Reid,  12  How.  States,   127  Fed.  530,  62  C.  C.  A. 

(U.  S.)  361,  13  L.  ed.  1023;    Hays  328    (8th    Cir.);     United    States    v. 

V.  United  States,  231  Fed.  106,    110,  Reid,  12  How.  (U.  S.)  361,  13  L.  ed. 

145  C.  C.  A.  294  (8th  Cir.) ;    Lung  1023.     But     see     Rosen     v.     United 

V.  United  States,  218  Fed.  817,  134  States,  245  U.  S.  467,  469,  62  L.  ed. 

C.  C.  A.  505  (9th  Cir.).  406,  38  S.  C.  148. 

•  Brown    v.    United    States,    233  §  301.    '  Board    of    Education    «;. 

Fed.  353,  147  C.  C.  A.  289  (6th  Cir.) ;  AlUance  Assur.   Co.,   159  Fed.   994, 

Logan  i;.   United  States,   144  U.  S.  998. 

263,  303,  36  L.  ed.  429,  12  S.  C.  617.  ^  Kring   v.    Missouri,    107    U.    S. 

7  United    States    v.    Hughes,    175  221,  232,  27  L.  ed.  506,  2  S.  C.  443, 

Fed.  238,  — .  quoting  Bishop  Crim.  Proc. 

« Louie    Ding    v.    United    States,  ^  United    States    «;.    Greene,    146 

247  Fed.   12,   15,  159  C.  C.  A.  230  Fed.  803,  824. 
248 


Chap.  XXXII]  PUBLIC    LAWS FEDERAL   LAWS  [§  303 

noticed  which  contain  points  peculiarly  applicable  to  criminal  law, 
or  where  points  regarding  judicial  notice  have  been  decided  in 
criminal  proceedings.  In  the  ascertainment  of  any  facts  of 
which  they  are  bound  to  take  judicial  notice,  as  in  the  decision  of 
matters  of  law  which  it  is  their  office  to  know,  the  judges  may 
refresh  their  memory  and  inform  their  conscience  from  such  sources 
as  they  deem  most  trustworthy.^ 

§  303.  Public  Laws  —  Federal  Laws. 

The  Federal  Courts  take  judicial  notice  of  the  Federal  public 
laws.^  A  treaty  to  which  the  United  States  is  a  party  is  a  law  of 
the  land,  of  which  all  courts  must  take  judicial  notice.^  In  a 
prosecution  for  conspiracy  to  defraud  the  customs  revenue  the 
court  will  take  judicial  notice  of  the  laws  of  the  United  States 
(tariff  act  of  1897)  and  the  fact  that  the  imports  concerned  were 
dutiable.^  The  courts  are  bound  to  take  judicial  notice  of  the 
government's  recognition  or  denial  of  the  sovereignty  of  a  foreign 
power,  as  appearing  from  the  public  acts  of  the  legislature  and 
executive,  although  their  acts  are  not  formally  put  in  evidence, 
nor  in  accord  with  the  pleadings.'*  The  President's  proclamation 
of  December  25th,  1868,  granting  amnesty,  is  a  public  act,  of 
which  all  courts  of  the  United  States  are  bound  to  take  notice.* 
But  the  courts  will  not  take  judicial  notice  of  a  pardon  unless 
it  is  granted  by  a  public  law.^  The  Federal  Courts  are  bound 
judicially  to  notice  the  prior  laws  of  territories  subsequently  ceded 
to  the  United  States,  as  much  so  as  the  laws  of  a  State  of  the  Union.^ 

§  302.   1  Jones   v.   United   States,  *  Jones  ;;.  United  States,   137  U. 

137  U.  S.  202,  34  L.  ed.  691,  11  S.  C.  S.  202,  34  L.  ed.  691,  11  S.  C.  80; 

80.  Oetjen  v.  Central  Leather  Co.,  246 

§  303.   1  United  States  v.  Randall,  U.  S.  297,  301,  62  L.  ed.  726,  38  S. 

Deady  524,   Fed.   Cas.   No.  16,118;  C.  309;    Ricaud  v.  American  Metal 

406,MatterofDunn,212U.  S.374,  53  Co.,  246  U.  S.  304,  307,  62  L.  ed. 

L.  ed.  558,  29  S.  C.  299 ;    Missouri,  726,  38  S.  C.  309. 
Kansas  &  Texas  Ry.  Co.  v.  Wulf,  226  °  Armstrong  v.  United  States,   13 

U.  S.  570,  57  L.  ed.  355,  33  S.  C.  135.  Wall.  (U.  S.)  154,  20  L.  ed.  614. 

2  United  States  v.  Rauscher,   119  « United  States  v.  WOson,  7  Pet. 

U.  S.  407,  30  L.  ed.  425,  7  S.  C.  234,  (U.  S.)  150,  163,  8  L.  ed.  640. 
where    an    extradition    treaty    with  ^  United    States    v.    Chaves,    159 

Great  Britain  was  judicially  noticed.  U.  S.  452,  458,  40  L.  ed.  215,   16 

2  Marrash  v.   United  States,    168  sc.   57 ;    Fremont  v.   United  States, 

Fed.  225,  93  C.  C.  A.  511  (2d  Cir.).  17  How.  (U.  S.)  542,  557,  15  L.  ed. 

249 


§  304]  EVIDENCE  [Chap.  XXXIl 

§  304.   State  Laws. 

Federal  Courts  will  take  judicial  notice  of  State  laws  so  far  as 
these  are  involved  in  the  issue. ^  On  the  trial  for  an  offense 
against  the  United  States  election  laws,  judicial  notice  will  be 
taken  that  at  the  election  in  question  State  officers  were  to  be 
elected  and  that,  by  the  laws  of  that  State,  the  names  of  all  candi- 
dates voted  for,  both  for  State  and  national  oflfices,  were  required 
to  be  on  one  ballot.^ 

§  305.   Foreign  Laws. 

The  existence  of  a  foreign  law,  especially  when  unwritten,  is  a 
fact  to  be  proved  like  any  other  fact,  by  appropriate  evidence.^ 

§  306.   Departmental  Regulations. 

Regulations  made  by  an  executive  department,  in  pursuance  of 
authority,  delegated  by  Congress,  have  the  force  of  law,  and  the 
courts  take  judicial  notice  of  their  existence  and  provisions. 
It  is  therefore  unnecessary  to  set  out  in  pleadings  the  rule  alleged 
to  be  violated,  either  in  terms  or  by  number.^  It  is  sufficient  if 
the  indictment  avers  that  an  act  done  in  pursuance  of  such  regu- 
lation was  done  under  the  requirements  of  law.^  Federal  Courts 
will  take  judicial  notice  of  the  statutes  conferring  on  the  Postmaster 
General  authority  to  promulgate  regulations  and  of  the  regulations 
adopted  and  promulgated  in  pursuance  thereof.^  In  a  prosecution 
for  shipping  meat  in  interstate  commerce  improperly  packed  the 

241;    United  States  v.  Perot,  98  U.  2  United  States  v.   Morrissey,   32 

S.  428,   25  L.   ed.  251 ;    Crespin  v.  Fed.  147. 

United  States,   168  U.  S.  208,  212,  §  305.   1  United  States  v.  Wiggins, 

42  L.  ed.  438,  18  S.  C.  53 ;  Sandoval  14  Pet.  (U.  S.)  334,  10  L.  ed.  481 ; 

V.    Priest,    210    Fed.    814,    816,    127  Dainese  v.  Hale,  91  U.  S.  13,  23  L. 

C.  C.  A.  364  (5th  Cir.).  ed.  190.     And  this  applies  to  foreign 

§  304.    '  Gerling  v.  Baltimore,  151  usages    and    customs.     Rossmann   v. 

U.  S.  673,  38  L.  ed.  311,   14  S.  C.  Gamier,  211  Fed.  401,  408,  128  C.  C. 

533;    Furman  v.  Nichol,  8  Wall.  (U.  A.  73  (8th  Cir.). 
S.)  44,  19  L.  ed.  370;   United  States  §  306.   1  United  States  v.  Moody, 

V.  Johnson  County,  6  Wall.   (U.  S.)  164  Fed.  269,  275. 
166,  18  L.  ed.  768 ;  Marbury  v.  Mad-  =  Wilkins    v.    United    States,    96 

ison,  1  Cranch  (U.  S.),  137,  2  L.  ed.  Fed.  837,  37  C.  C.  A.  588  (3d  Cir.). 
60;     Barry   v.    Snowden,    106    Fed.  »  Bruce  t).  United  States,  202  Fed. 

571;    New   York   Mutual   Life   Ins.  98,  120  C.  C.  A.  370  (8th  Cir.). 
Co.  V.  Hill,  97  Fed.  263,  38  C.  C.  A. 
159  (9th  Cir.). 
250 


Chap.  XXXII]  DEPARTMENTAL   REGULATIONS  [§  308 

court  will  take  judicial  notice  of  the  regulations  of  tlie  Secretary 
of  Agriculture,  but  not  of  those  of  the  Bureau  of  Animal  Industry.'* 
The  court  will  take  judicial  notice  of  the  regulations  of  the  Secretary 
of  War  promulgated  under  Section  13  of  the  Selective  Service  Act." 
A  general  regulation  of  the  General  Land  Office  respecting  home- 
stead entries  for  the  government  of  the  officers  of  local  land  offices, 
promulgated  pursuant  to  Revised  Statutes  Section  2478,  becomes 
a  part  of  the  body  of  public  laws,  of  which  the  courts  will  take 
judicial  notice.*^  Other  departmental  rules  and  regulations 
which  have  been  judicially  noticed  are :  rules  and  regulations  of 
the  Commissioner  of  Internal  Revenue ;  ^  rules  and  regulations 
of  the  Interior  Department,^  and  general  regulations  of  the  Treas- 
ury and  War  Departments.^  On  the  other  hand  it  has  been  held 
that  a  Federal  appellate  court  should  not  be  asked  to  take  judicial 
notice  of  departmental  regulations,  as  in  this  case,  the  post  office 
department.^"  And  it  has  also  been  held  that  regulations  of  the 
land  office,  whether  prescribed  by  the  Secretary  of  the  Interior  or  by 
the  Commissioner,  are  not  judicially  known,  and  must  be  pleaded.-^^ 

§  307.  Acts  of  Public  Officers. 

Federal  Courts  will  take  judicial  notice  of  the  acts  of  public 
officers  only  so  far  as  that  is  justified  by  the  circumstances.  So, 
the  court  will  take  judicial  notice  of  the  President's  signature  on  a 
trust  patent  of  an  Indian  allotment.^  But  such  acts  as  the  duties 
of  navy  pursers  will  not  usually  be  judicially  noticed." 

§  308.   Proceedings  and  Records  of  Federal  Courts. 
Federal  Courts  will  take  judicial  notice  of  facts  concerning  the 
organization,  duties  and  proceedings  of  the  Federal  Courts.     Espe- 

^  United  States  i;.   Rohe  &  Bro.,  ^  Dominici    v.    United    States,    72 

218  Fed.  182.  Fed.    46;    United    States    v.    Casey, 

5  United  States  v.  Casey,  247  Fed.       247  Fed.  362. 

362.  "  Nagle  v.  United  States,  145  Fed. 

6  Nurnberger    v.    United    States,  302,  306-,  76  C.  C.  A.  181  (2d  Cir.). 
156  Fed.  721,  84  C.  C.  A.  377  (8th  "  United   States   v.   Bedgood,    49 
Cir.).  Fed.  54. 

"  Sprinkle  v.   United   States,    141  §  307.   i  Estes    v.    United    States, 

Fed.  811,  820,  73  C.  C.  A.  285  (4th  225  Fed.  980,  141  C.  C.  A.  102  (8th 

Cir.).  Cir.). 

8  Caha  V.  United  States,   152  U.  ^  United  States  v.  Tingey,   5  Pet. 

S.  211,  38  L.  ed.  415,  14^S.  C.  513.  U.  S.)  115,  8  L.  ed.  66. 

251 


§  308]  EVIDENCE  [Chap.  XXXII 

cially,  they  will  judicially  notice  the  records  of  proceedings  in  the 
same  litigation  or  one  related  thereto.  A  Federal  district  court 
will  take  judicial  notice  of  its  records  relative  to  the  duties  of  its 
officers  when  it  is  claimed  that  they  have  failed  to  perform  them.^ 
Since  a  proceeding  for  criminal  contempt  growing  out  of  a  civil 
suit  is  collateral  to  it,  a  Federal  Court  will  take  judicial  notice  in 
the  trial  of  the  contempt  proceedings  of  all  orders  made  in  the  civil 
cause.^  The  court  may  take  judicial  notice  of  the  fact  that  a 
witness  had  testified  in  his  own  behalf  at  a  former  trial  contrary 
to  the  Government's  contention.^  A  court  does  not,  in  the  trial 
of  one  case,  take  judicial  notice  of  proceedings  had  in  other  cases, 
even  though  shown  by  its  own  records.^  In  passing  upon  a  plea 
in  abatement  for  an  omission  of  the  clerk  in  drawing  the  ground 
jury,  the  district  court  will  take  judicial  notice  of  its  own  record 
relative  to  the  duty  which  it  is  said  the  clerk  failed  to  perform 
(placing  the  names  of  grand  jurors  in  the  box).^  On  an  appli- 
cation for  allowance  of  a  writ  of  error  on  the  ground  that  the  court 
deprived  the  defendant  of  a  trial  by  jury.  Judge  Ray,  to  whom  the 
application  was  made,  took  judicial  notice  of  the  records  of  his  own 
Court  that  the  defendant  voluntarily  pleaded  guilty  and  thereby 
dispensed  with  a  trial  by  jury  and  denied  the  application.  But 
this  is  of  doubtful  propriety.  There  may  be  no  merits  in  a  defend- 
ant's contention,  nevertheless,  he  has  a  statutory  right  to  a  writ 
of  error."  The  Federal  circuit  courts  will,  in  a  collateral  proceeding, 
take  judicial  notice  of  the  affirmance  of  its  judgment  by  the 
Supreme  Court  of  the  United  States,  when  the  fact  is  one  of 
general  notoriety  in  the  State  and  has  been  telegraphed  to  and 
published  in  the  leading  newspapers.^  But  it  has  been  said  that, 
while  it  is  well  settled  that  Federal  Courts  can  take  judicial  notice 
of  their  own  records,  it  is  not  at  all  clear  that  they  are  always 
required  to  do  so ;   therefore,  the  proper  and  safe  way  of  proceed- 

§  308.    »  United   States   v.    Lewis,  *  Withaup  v.   United  States,    127 

192  Fed.  033.  Fed.  530,  535,  62  C.  C.  A.  328  (8th 

2  Schwartz  v.  United  States,  217  Cir.). 
Fed.  866,  870,  133  C.  C.  A.  570  (4th  *  United    States    v.    Greene,    113 

Cir.).  Fed.  083,  691. 

'  Galhigher  v.  United  States,  144  «  United  States  v.  Harris,  224  Fed. 

Fed.  87,  89,  75  C.  C.  A.  245   (1st  285. 
Cir.).  ^  In  re  Durrant,  84  Fed.  314. 

252 


Chap.  XXXII]        FACTS    OF    GENERAL    KNOWLEDGE  [§  309 

ing,  even  with  reference  to  the  tribunal  in  which  the  prior  record 
remains,  is  by  plea  and  proof.*'  They  will  also  take  judicial 
notice  of  the  incumbents  and  the  regularity  of  the  proceedings. 
So,  a  Federal  district  court  will  take  judicial  notice  that  the  grand 
jury  was  publicly  drawn  in  the  United  States  court  house  of  the 
district  in  the  presence  of  all  the  officers  who  were  by  law  required 
to  be  present.^  The  United  States  Circuit  Court  of  Appeals  will 
take  judicial  notice  as  to  whether,  at  the  time  a  grand  jury  was 
impaneled  and  returned  bills  of  indictment,  as  specified  in  the 
transcript  of  a  writ  of  error,  both  the  district  and  circuit  courts 
were  in  session,  and  as  to  who  were  the  presiding  judge  and  clerk 
thereof.!" 

§  309.   Facts  of  General  Knowledge. 

Facts  may  be  judicially  noticed  which,  as  matters  of  history, 
geographical  importance,  commercial  and  industrial  statutes, 
scientific  import,  language,  art  or  other  universally  known  human 
activity,  are  so  notorious  that  the  introduction  of  evidence  thereof 
is  unnecessary  and  superfluous. ^  And  the  United  States  Courts 
will  take  judicial  notice  of  the  territorial  extent  of  the  government, 
the  local  divisions  of  the  country,  its  geography,  its  natural  water 
courses,  and  their  boundaries,  and  the  ports  and  waters  of  the 
United  States  in  which  the  tide  ebbs  and  flows,  and  of  the 
boundaries  of  the  several  States  and  judicial  districts.^  So,  it 
has  been  judicially  noticed  that  Iditarod  is  in  a  remote  and  very 
sparsely  settled  portion  of  Alaska,  and  that  in  the  latter  part  of 
September  transportation  to  and  from  that  point  is  about  to 
close  for  the  season,^  that  all  railroads  in  the  United  States  are 
mail  routes,  and  that  all  passenger  trains  ordinarily  carry  mail.^ 

8  In  re  Osborne,    115  Fed.   1,   52  ton  R.  R.  Co.,  4  Ohio  D.  C.  P.  &  P. 
C.  C.  A.  595  (1st  Cir.).  (Laning)  4S7. 

9  United  States  v.  Greene,  113  ^  Ex  parte  Lair,  177  Fed.  789; 
Fed.  683,  694.  Jones   v.   United   States,    137   U.   S. 

"  Ledbetter  v.  United  States,  108  202,  34  L.  ed.  691,  11  S.  C.  80 ;  Brown 

Fed.  52,  47  C.  C.  A.  191  (5th  Cir.).  v.  United  States,  257  Fed.  46  (C.  C. 

§309.   1  Louisville  &  NashviUe  R.  A.  5th  Cir.). 
R.  Co.  V.  Kentucky,  161  U.  S.  677,  '  Campbell  v.  United  States,  221 

40  L.  ed.  849,  16  S.  C.  714 ;  Gulf  Co.  Fed.    186,    136   C.   C.   A.   602   (9th 

&  Santa   Fe   Ry.  Co.  et   al.  v.  The  Cir.). 

State  of  Texas,  72  Texas,  404 ;  Hafer  *  United  States  v.  Hall,  206  Fed. 

V.  The  Cincinnati,  Hamilfon  &  Day-  484. 

253 


§  309]  EVIDENCE  [Chap.  XXXll 

On  a  trial  of  an  indictment  for  violating  the  neutrality  laws  by 
shipping  arms  to  the  State  of  Sonora  in  Mexico,  the  court  will 
take  judicial  notice  that  such  state  is  a  large  country  and  not  a 
"  place  "  in  jMexico.^  It  has  been  held  that  courts  will  take 
judicial  notice  that  morphine,  heroin  and  cocaine  are  derivatives 
of  opium  and  coca  leaves ;  ^  that  crude  glycerine  is  a  product 
derived  from  animal  fats ;  ^  that  salad  oil  as  defined  by  standard 
lexicographers  is  olive  oil ;  ^  that  opium  is  not  commercially  a 
domestic  product ;  ^  that  vaccination  is  commonly  believed  to  be 
a  safe  and  valuable  means  of  preventing  the  spread  of  smallpox, 
and  that  this  belief  is  supported  by  high  medical  authority .^° 
On  the  other  hand  it  has  been  held  that  the  court  will  not  take 
judicial  notice  that  cocaine,  morphine  sulphate  and  morphine  are 
derivatives  of  opium  and  coca  leaves,  and  indictments  under  the 
Harrison  Narcotic  Act  were  held  defective  for  failing  to  allege 
this  fact.^^  The  date  of  making  the  drawing  under  the  Selective 
Draft  Act  is  a  historical  fact,  of  which  the  court  will  take  judicial 
notice  without  proof  .^-  Beer  is  judicially  known  to  be  a  fermented 
liquor,  chiefly  made  of  malt,^^  and  judicial  notice  has  been  taken 
that  whiskey  is  an  intoxicating  liquor  and  that  a  "  whiskey  cock- 
tail "  is  an  intoxicating  drink,^^  that  gin  and  beer  are  intoxicants,^^ 
that  okolihoa,  a  Hawaiian  product,  is  intoxicating,^^  that  tobacco 
and  liquor  affect  different  men  differently.^^  But  it  appears  that 
courts  cannot  take  judicial  notice  of  the  fact  that  tobacco  in  the 
form  of  cigarettes  is  more  noxious  than  in  any  other  form.'^^  In 
a  prosecution  for  receiving  stolen  stamps,  the  court  will  judicially 
notice  certain  facts  of  general  knowledge  concerning  the  purchase 

^  United  States  v.  Albert  Steinfeld  ^^  United  States  v.  Sugarman,  245 

&  Co.,  209  Fed.  904.  Fed.  604. 

*  Hughes    V.    United    States,    253  "  United  States  v.  Ducournan,  54 

Fed.  543  (C.  C.  A.  8th  Cir.).  Fed.  138. 

^  llHnois  Cudahy  Packing  Co.  v.  "  United  States  v.   Ash,   75  Fed. 

Kansas  City  Soap  Co.,  247  Fed.  556.  651. 

8  Von  Bremen  v.  United  States,  192  i^  Hoagland  v.  Canfield,  160  Fed. 
Fed.  904,  113  C.  C.  A.  296  (2d  Cir.).  146,  160. 

9  United  States  v.  Yee  Fing,  222  !» The  Kawailani,   128  Fed.  879, 
Fed.  154.  63  C.  C.  A.  347  (9th  Cir.). 

"Jacobson  v.  Massachusetts,  197  "Hoagland  v.  Canfield,  160  Fed. 

U.  S.  11,  49  L.  ed.  643,  25  S.  C.  358.  146,  160. 

"  United  States  v.  Hammers,  241  '^  Austin  v.  Tennessee,  179  U.  S. 

Fed.  542.  343,  45  L.  ed.  224,  21  S.  C.  132. 

254 


Chap.  XXXII]  EVIDENCE   OF   MARRIAGE  [§  309  a 

and  use  of  stamps. ^^  The  word  "  certify  "  as  applied  to  bank 
checks  and  as  used  in  Revised  Statutes,  §  5208,  and  Act  of  Congress 
July  12,  1882,  c.  290,  No.  13,  has  become  a  term  of  art,  and  the 
court  is  bound  to  take  judicial  notice  of  its  meaning.^"^  Judicial 
notice  also  has  been  taken  of  the  following  facts :  the  locality  of 
the  River  St.  John's,  Florida,^^  the  national  coinage,^^  the  Civil 
War,^^  and  the  existence  of  national  banks.'^  Tlie  courts  will  take 
judicial  knowledge  of  the  facts  of  chemistry  contained  in  the  United 
States  Pharmacopoeia.^^ 

§  309  a.  Evidence  of  Marriage. 

"  Every  ceremony  of  marriage,  or  in  the  nature  of  a  marriage 
ceremony  of  any  kind,  whether  either  or  both  or  more  of  the  parties 
to  such  ceremony  be  lawfully  competent  to  be  the  subjects  of  such 
marriage  or  ceremony  or  not,  shall  be  certified  by  a  certificate 
stating  the  fact  and  nature  of  such  ceremony,  the  full  name  of 
each  of  the  parties  concerned,  and  the  full  name  of  every  officer, 
priest,  and  person,  by  whatever  style  or  designation  called  or  known, 
in  any  way  taking  part  in  the  performance  of  such  ceremony, 
which  certificate  shall  be  drawn  up  and  signed  by  the  parties  to 
such  ceremony  and  by  every  officer,  priest  and  person  taking  part 
in  the  performance  of  such  ceremony,  and  shall  be  by  the  officer, 
priest,  or  other  person  solemnizing  such  marriage  or  ceremony 
filed  in  the  office  of  the  probate  court,  or,  if  there  be  none,  in  the 
office  of  the  court  having  probate  powers  in  the  county  or  district 
in  which  such  ceremony  shall  take  place,  for  record,  and  shall  be 
immediately  recorded,  and  be  at  all  times  subject  to  inspection 
as  other  public  records.  Such  certificate,  or  the  record  thereof, 
or  a  duly  certified  copy  of  such  record,  shall  be  prima  facie  evidence 
of  the  facts  required  by  this  section  to  be  stated  therein  in  any 
proceeding,  civil  or  criminal,  in  which  the  matter  shall  be  drawn 
in  question.     But  nothing  in  this  section  shall  be  held  to  prevent 

"  Naftzger  v.  United  States,  200  ^^  prjze   Cases,    2   Black    (U.   S.), 

Fed.  494,  118  C.  C.  A.  598  (8th  Cir.).  635,  669,  17  L.  ed.  459. 

2"  United   States    v.    Heinze,    161  ^4  United    States    v.    Williams,    4 

Fed.  425.  Biss.  302,  Fed.  Cas.  No.  16,706.      ' 

2'  United    States    v.     Lawton,     5  -^  Melanson  v.  United  States,  256 

How.  (U.  S.)  10,  12  L.  ed.  27.  Fed.  783  (C.  C.  A.  5th  Cir.). 

2-  United  States  v.  Burns,  5  Mc- 
Lean 23,  Fed.  Cas.  No.  14,691. 

255 


§  309  a]  EVIDENCE  [Chap.  XXXII 

the  proof  of  marriages,  whether  lawful  or  unlawful,  by  any  evidence 
otherwise  legally  admissible  for  that  purpose.  Whoever  shall 
wilfully  violate  any  provision  of  this  section  shall  be  fined  not 
more  than  one  thousand  dollars,  or  imprisoned  not  more  than  two 
years,  or  both.  The  provisions  of  this  section  shall  apply  only 
within  the  Territories  of  the  United  States."  ^ 

§  309  b.  Records  of  Governmental  Departments. 

Records  kept  by  the  several  governmental  departments  pursuant 
to  a  constitutional  or  statutory  requirement  ^  are  public  records, 
and  are  admissible  in  evidence.^  Such  books  and  records  are 
presumptively  correct  and  the  absence  of  an  entry  in  such  books 
or  records  is  proper  subject  for  the  consideration  of  the  jury.^ 

MATERIALITY   AND   COMPETENCY 

§  310.   Evidence  Admitted. 

Evidence  should  be  admitted,  if  competent  and  relevant  on  any 
issue  or  any  phase  of  a  case.  The  party  offering  it  need  not  explain 
the  point  or  matter  to  which  it  is  addressed  unless  required  to  do  so 
by  the  court.^  The  exclusion  of  material  evidence  offered  on  behalf 
of  a  defendant  is  prima  facie  prejudicial  error.^  There  is  a  pre- 
sumption of  harm  arising  from  the  existence  of  an  error  com- 
mitted by  a  trial  court  against  the  party  complaining,  in  excluding 
material  evidence  in  a  trial  before  a  jury.  It  is  only  in  cases  where 
the  absence  of  harm  is  clearly  shown  from  the  record  that  the 

§  309  a.   1  Act  of  March  3,   1887,  L.  ed.  674 ;    Post  v.  Kendal  County, 

c.   397,    §§9,    10,   24  Stat.   L.   636;  105  U.  S.  667,  26  L.  ed.  1204 ;  Oakes 

March   4,    1909,    c.   321,    §  319,    35  v.    United   States,    174    U.    S.    778, 

Stat.  L.  1149.  43  L.  ed.  1169,  19  S.  C.  864;   Holt 

§  309  b.   1  Constitution      of      the  v.    United    States,    218    U.    S.    245, 

United  States,  Article  1,  §  9,  clause  54  L.  ed.  1021,  31  S.  C.  2. 
7 ;     Act   of    Congress   September   2,  ^  Chesapeake   &   Delaware   Canal 

1789,  c.  12,  §  2,  1  Stat.  L.  386 ;   Act  Co.  v.  United  States,  decided  June 

of  September  30,  1890,  26  Stat.  L.  19,  1919. 

504,  511,  c.  1126;    Act  of  July  31,  §310.   »  Moffatt  t;.  United  States, 

1894,  c.  174,  §  15,  28  Stat.  L.  210.  232  Fed.  522,  533,  146  C.  C.  A.  480 

2  Chesapeake  &   Delaware  Canal  (8th  Cir.) ;    Moore  v.  United  States, 

Co.  V.  United  States,  decided  June  150  U.  S.  57,  37  L.  ed.  996,  14  S.  C. 

19,  1919;    Gaines  v.  Relf,   12  How.  26. 

(U.  S.)  472,  13  L.  cd.  107;    Bryan  v.  « Crawford  v.  United  States,  212 

Forsyth,    19   How.    (U.   S.)   334,    15  U.  S.  183,  53  L.  ed.  465,  29  S.  C.  260. 
256 


Chap.  XXXII]         MATERIALITY   AND   COMPETENCY  [§  311 

commission  of  such  an  error  is  not  cause  for  reversal.^  Testimony 
with  reference  to  "  course  of  business  "  is  admissible  in  criminal 
cases  as  well  as  in  civil  cases.^  The  period  of  time  within  which 
matters  offered  to  establish  purpose  must  have  occurred  to  permit 
of  their  admission  is  largely  discretionary  with  the  court.^  Where 
the  case  rests  in  part  upon  circumstantial  evidence,  much  dis- 
cretion is  left  to  the  trial  court,  and  its  rulings  will  be  sustained  if 
the  testimony  which  is  admitted  tends  even  remotely  to  establish 
the  ultimate  facts.^  Where  part  of  a  document  or  statement  is 
used  against  a  party,  he  is  entitled  to  have  the  whole  of  it  laid 
before  the  jury,  who  may  consider  the  weight  of  the  self-serving 
portions  of  it.*^  Therefore,  a  defendant  charged  with  depositing 
an  obscene  book  in  the  mails  is  entitled  to  have  the  whole  book 
introduced  in  evidence,  to  be  considered  by  the  jury  under  proper 
instructions  from  the  court,*^ 

§311.  Evidence  Which  Should  Be  Excluded  —  Testimony 
before  Congressional  Committees. 

Evidence  which  is  clearly  incompetent  and  immaterial  will  be 
excluded.^  It  is  prejudicial  error  to  allow  the  government  to 
introduce  evidence  of  a  third  person's  conviction  calculated  to 
induce  the  jury  to  believe,  contrary  to  the  fact,  that,  but  for  the 
conviction,  he  would  have  been  called  as  a  witness.-  If  matters 
in  a  document,  though  relevant,  are  of  little  evidential  value,  and 
inseparably  mingled  with  matters  inadmissible  and  highly  pre- 
judicial, the  materiality  is  merged  in  the  prejudice,  and  the  docu- 
ment cannot  be  received.^    Corroborating  evidence  of  the  testi- 

'  Crawford  v.  United  States,  212  ^  Perrin  v.  United  States,  169  Fed. 

U.  S.  183,  203,  53  L.  ed.  4G5,  29  S.  17,  26,  94  C.  C.  A.  385  (9th  Cir.). 
C.  260.  8  Clark  v.  United  States,  211  Fed. 

^Kerrch    v.    United    States,     171  916,   922,    128    C.    C.   A.    294    (8th 

Fed.  366,  96  C.  C.  A.  258  (1st  Cir.) ;  Cir.). 

Watlington  v.  United  States,  233  Fed.  §  311.   i  Booth  v.   United  States, 

247,  147  C.  C.  A.  253  (8th  Cir.).  139  Fed.  252,  71  C.  C.  A.  378  (2d 

*  Kettenbach    v.     United    States,  Cir.). 
202  Fed.  377,  384,  120  C.  C.  A.  505  ^  GaUagher  v.  United  States,  144 

(9th    Cir.);     WiUiamson    v.    United  Fed.  87,  75  C.  C.  A.  245  (1st  Cir.). 
States,  207  U.  S.  425,  52  L.  ed.  278,  ^  Harrison  v.   United  States,   200 

28  S.  C.  163.  Fed.  662,  674,  119  C.  C.  A.  78  (6th 

« Louie  V.  United  States,  218  Fed.  Cir.). 
36,  41,  134  C.  C.  A.  58  (9fh  Cir.). 

VOL.  1  —  17  257 


§  311]  EVIDENCE  [Chap.  XXXII 

mony  of  a  witness  who  is  shown  to  be  infamous  should  not  be 
extended  to  such  acts  in  the  witness'  narrative  as  are  generally 
known,  but  should  be  confined  to  those  matters  which,  whether  in 
themselves  material  to  conviction  or  not,  are  seen  to  be  well  cal- 
culated to  strengthen  and  confirm  the  truth  of  his  story.*  By 
express  mandate  of  the  statute  no  testimony  given  by  a  witness 
before  either  House,  or  before  any  Committee  of  either  House 
of  Congress,  shall  be  used  as  evidence  in  any  criminal  proceeding 
against  him  in  any  court  except  in  prosecutions  for  perjury,  com- 
mitted in  giving  such  testimony.  But  an  official  paper  or  record 
produced  by  him  is  not  within  said  privilege.^ 

§  312.   Motive  of  Accused. 

The  rule  long  settled  in  this  country,  almost  without  exception, 
is  that,  whenever  the  motive  or  intent  of  an  act  or  the  conduct  of 
a  person  accused  is  material,  he  may  testify  directly  as  to  what  it 
was.^  He  may  also  give  the  grounds  of  the  belief  upon  which  his 
motive  or  intent  proceeded,  including  the  statements  of  third 
persons  to  him,^  But  other  witnesses  will  not  be  allowed  to  testify 
as  to  the  intent  of  the  accused.  They  may  testify  as  to  the  cir- 
cumstances, leaving  the  jury  to  decide  as  to  the  intent  of  the 
accused.^ 

BURDEN    OF   PROOF 

§  313.  GeneraUy. 

It  is  elementary  law  that  the  burden  of  proof  to  establish  the 
commission  of  a  crime,  and  every  essential  element  thereof,  and 
the  guilt  of  the  accused,  rests  upon  the  prosecution  and  does  not 
shift.^     In  other  words,  the  law  does  not  cast  on  the  accused  the 

*  United    States    v.    Biebusch,    1  Fed.  257,  259,  147  C.  C.  A.  263  (8th 

Fed.  213,  216.  Cir.). 

6  Revised  Statute,  §  859.  ^  Cooper    v.    United    States,    232 

§  312.    »  Cummins       v.       United  Fed.  81,  146  C.  C.  A.  273  (2d  Cir.). 

States,  232  Fed.  844,  845,  147  C.  C.  §  313.   '  Wilson  v.  United  States, 

A.  38  (8th  Cir.) ;  Buchanan  v.  United  232  U.  S.  563,  570,  58  L.  ed.  728, 

States,  233  Fed.  257,  259,  147  C.  C.  34  S.  C.  347  ;  Coffin  v.  United  States, 

A.    263    (8th    Cir.) ;     Crawford    v.  156  U.  S.  432,  39  L.  ed.  481,  15  S.  C. 

United   States,    212   U.    S.    183,    63  394;    Melton  ;;.  United  States,   120 

L.  ed.  465,   29  S.   C.   260 ;    United  Fed.  504,  57  C.  C.  A.  134  (5th  Cir.) ; 

States  V.  Stone,  8  Fed.  232.  United  States  v.  Pracger,   149  Fed. 

» Buchanan  v.  United  States,  233  474,   485 ;    Davis  v.   llnited  States, 

258 


Chap.  XXXII]  MATTERS   OF   DEFENSE  [§  313 

burden  of  satisfying  the  jury  as  to  his  innocence.^  Pleas  of  not 
guilty  put  in  issue  every  allegation  in  the  count,  and  place  upon 
the  government  in  the  amplest  way  the  burden  of  proving  every 
essential  element  of  the  offense  charged.^  Each  item  must  be 
proved  as  if  the  whole  issue  rested  upon  it/  unless  a  statute  pro- 
vides otherwise.^  A  defendant  in  a  criminal  case  has  the  absolute 
right  to  require  that  the  jury  decide  whether  or  not  the  evidence 
sustains  each  and  every  material  part  of  the  indictment,  and  the 
Court  is  without  power  to  charge  as  a  matter  of  law  that  any  such 
allegation  is  proven,  even  when  the  evidence  is  clear  and  uncon- 
tradicted.^ 

§  314.  Matters  of  Defense. 

But,  while  the  burden  of  establishing  guilt  rests  on  the  prose- 
cution from  the  beginning  to  the  end  of  the  trial,  the  presumption 
of  innocence  remains  with  the  defendant  only  until  such  time 
in  the  progress  of  the  trial  that  the  jury  is  satisfied  from  the 
evidence  of  the  guilt  of  the  defendant  beyond  a  reasonable  doubt .^ 
Contrary  to  the  trend  of  the  authorities,  it  has  been  held  that  a 
dealer  in  narcotic  drugs  has  the  burden  of  showing  registry  and 
payment  of  the  special  tax  under  the  Harrison  Act.^  And  where 
the  accused  files  a  plea  in  bar  and  by  it  brings  upon  the  record  a 
new  issue  whereby  he  asserts  that  there  exist  certain  facts  which, 

160  U.  S.  469,  487,  40  L.  ed.  499,  C.    C.    A.   384    (6th   Cir.) ;    United 

16  S.  C.  353 ;   Post  v.  United  States,  States  v.  Gooding,  12  Wheat.  (U.  S.) 

135  Fed.  1,  10,  67  C.  C.  A.  569  (5th  460,  6  L.  ed.  693;    United  States  v. 

Cir.) ;    Stuart  v.  Reynolds,  204  Fed.  Woods,  4  Cr.  C.  C.  484,  Fed.  Cas. 

709,  715,  123  C.  C.  A.  13  (5th  Cir.) ;  No.  16,760. 

Glover  v.   United  States,    147   Fed.  ^  Smith    v.    United    States,    208 

426,  432,  77  C.  C.  A.  450  (8th  Cir.) ;  Fed.  131,  125  C.  C.  A.  353  (8th  Cir.). 
Agnew  V.  United  States,   165  U.  S.  ^  United    States    v.    Gooding,    12 

36,  41  L.  ed.  624, 17  S.  C.  235 ;  United  Wheat.  (U.  S.)  460,  6  L.  ed.  693. 
States    V.    Wright,     16    Fed.     112;  « Konda    v.    United    States,    166 

Chaffee  &  Co.  v.  United  States,   18  Fed.  91  (C.  C.  A.  7th  Cir.). 
WaU.   (U.  S.)   516,  21    L.  ed.   908 ;  §  314.   i  Agnew  v.  United  States, 

United   States   v.   Babcock,    3   Dill.  165  U.  S.  36,  49,  41  L.  ed.  624,  17 

581,  Fed.  Cas.  No.  14,487.  S.  C.  235;   United  States  v.  German,^ 

2  Davis  y.  United  States,  160  U.  S.  115    Fed.    987;     United    States    v. 

469,  40  L.  ed.  499,  16  S.  C.  353.  Heike,  175  Fed.  852. 

^  Konda  ;;.  United  States,  166  Fed.  ^  Qqq  ^^Toq  v.  United  States,  250 

91  (C.  C.  A.  7th  Cir.) ;  Prettyman  v.  Fed.  428,  431,  162  C.  C.  A.  498  (5th 

United  States,  180  Fed.  30,  42,  103  Cir.). 

259 


§  314]  EVIDENCE  [Chap.  XXXU 

though  he  may  be  guilty  of  all  that  is  charged  in  the  indictment,  he 
cannot  be  prosecuted  or  punished  for,  as  to  that  issue  the  burden  of 
introducing  evidence,  if  not  the  burden  of  proof,  is  on  the  accused.^ 

§  315.   Corpus  Delicti. 

In  all  trials  for  crime  the  prosecution  must  prove  beyond  a 
reasonable  doubt  that  a  crime  has  been  committed,  before  the  jury 
proceed  to  inquire  as  to  who  is  the  criminal.  This  elementary 
and  conservative  principle  has  always  been  regarded  as  very 
important  in  cases  involving  the  life  and  liberty  of  the  citizen, 
and  it  has  generally  been  strictly  observed  in  the  courts.^ 

§  316.   Reasonable  Doubt. 

In  criminal  causes,  not  only  is  the  burden  upon  the  prosecution 
to  establish  the  guilt  of  the  accused,  but  in  order  to  justify  a 
verdict  of  guilty,  the  jury  must  be  satisfied,  beyond  a  reasonable 
doubt,  that  every  fact  material  for  the  conviction  has  been 
established.  The  proof  must  exclude  reasonable  doubt,  not  all 
doubt.^  In  the  definitions  of  "  reasonable  doubt  "  there  is  hope- 
less confusion  in  the  adjudicated  cases.  Definitions  approved  in 
some  courts  have  been  held  reversible  in  others.  The  difficulty 
lies  in  explaining  words  which  perhaps  define  themselves  better 
than  can  be  done  by  any  paraphrase  or  elucidation,.  As  Mr.  Jus- 
tice Woods  said  in  Miles  v.  United  States  :  ^  "  Attempts  to  explain 
the  term  reasonable  doubt  do  not  usually  result  in  making  it  any 
clearer  to  the  jury."  ^ 

LEGAL   PRESUMPTIONS 

§  317.   In  General  —  Definition. 

A  presumption  is  a  probable  inference,  which  common  sense, 
enlightened  by  human  knowledge  and  experience,  draws  from  the 

» United    States    v.     Heike,     175  States,  245  Fed.  305,  307,  157  C.  C. 

Fed.    852,    ajfinned   227    U.    S.    131,  A.    497    (9th    Cir.) ;     United   States 

57  L.  ed.  450,  33  S.  C.  22G.  v.  Wright,  16  Fed.  112. 

§  315.    1  United  States  v.  Searcey,  ^  103   U.   S.   304,    312,    26   L.  ed. 

26  Fed.  435;  Flower  v.  United  States,  481. 

116  Fed.  241,  53  C.  C.  A.  271  (5th  =>  Griggs    v.    United    States,    158 

Cir.).    See  also  circumstantial  evi-  Fed.  572,  578,  85  C.  C.  A.  596    (9th 

DENCE.     Corroboration  as  to  Corpus  Cir.).     For   a   further   exposition   of 

Delicti,  Kcc  §  331  infra.  this   subject,    see   charge    to   jury. 

§  316.   '  NO.  Choy  Fong  «;.  United 
2()0 


Chap.  XXXII]        PRESUMPTION   AS  TO   INNOCENCE  [§  318 

connection,  relation  and  incidence  of  facts  and  circumstances 
with  each  other.  When  a  fact  shown  in  evidence  necessarily 
accompanies  the  fact  in  issue,  it  gives  rise  to  a  strong  presumption 
as  to  the  existence  of  the  fact  to  be  proved.  If  the  fact  in 
evidence  usually  accompanies  the  fact  in  issue,  it  gives  rise  to 
a  probable  presumption  of  the  existence  of  the  fact  to  be  proved. 
If  the  fact  shown  in  evidence  only  occasionally  accompanies  the 
fact  in  issue,  it  gives  rise  only  to  a  slight  and  insufficient  presump- 
tion ;  but  even  this  fact  may,  in  connection  with  other  relevant 
and  consistent  facts  and  circumstances,  constitute  an  element 
in  circumstantial  evidence.  There  is  a  difference  between  the  legal 
doctrine  of  presumptions  and  evidence  which  is  purely  circum- 
stantial. There  are  presumptions  of  law  and  presumptions  of 
fact.  Presumptions  of  law  are  usually  founded  upon  reasons  of 
public  policy,  and  social  convenience  and  safety,  which  are 
warranted  by  the  legal  experience  of  courts  in  administering 
justice.  Some  of  these  presumptions  have  become  established 
and  conclusive  rules  of  law,  while  others  are  only  prima  facie 
evidence,  and  may  be  rebutted.  The  court  may  always  instruct 
a  jury  as  to  the  force  and  effect  of  legal  presumptions.  Pre- 
sumptions of  fact  must  always  be  drawn  by  a  jury ;  and  every 
fact  and  circumstance  which  tends  to  prove  any  fact  which  is 
evidence  of  guilt  is  admissible  in  evidence  on  the  trial  of  a  case. 
Presumptions  of  fact  result  from  the  proof  of  a  fact,  or  a  number 
of  facts  and  circumstances,  which  human  experience  has  shown  are 
usually  associated  with  the  matter  under  investigation.^  A 
presumption  upon  a  matter  of  fact,  when  it  is  not  merely  a  dis- 
guise for  some  other  principle,  means  that  common  experience 
shows  the  fact  to  be  so  generally  true  that  courts  may  notice  the 
truth .^    A  presumption  on  a  presumption  cannot  be  indulged  in.^ 

§  318.   Presumption  as  to  Innocence. 

There  is  a  legal  presumption  that  an  accused  is  innocent  until 
he   is  proved  to  be  guilty   beyond   a  reasonable  doubt.      The 

§  317.    1  United  States  v.  Searcey,  281,  23  L.  ed.  707  ;   Manning  v.  John 

26  Fed.  435.  Hancock  Mutual  Life  Ins.  Co.,  100 

'■  Greer  v.  United  States,  245  U.  S.  U.  S.  693,   25  L.  ed.   761 ;    United 

559,  561,  62  L.  ed.  469,  38  S.  C.  209.  States  v.  Carr,  132  U.  S.  644,  33  L. 

3  United  States  v.  Ross,  92  U.  S.  ed.  483,  10  S.  C.  182. 

261 


§  318]  EVIDENCE  [Chap.  XXXII 

burden  is  upon  the  Government  to  make  this  proof,  and  evidence 
of  facts  that  are  as  consistent  with  innocence  as  with  guilt  is 
insufficient  to  sustain  a  conviction.  Unless  there  is  substantial 
evidence  of  facts  which  exclude  every  other  hypothesis  but  that  of 
guilt,  it  is  the  duty  of  the  trial  court  to  instruct  the  jury  to  return 
a  verdict  for  the  accused ;  and  where  all  the  substantial  evidence 
is  as  consistent  with  innocence  as  with  guilt,  it  is  the  duty  of 
the  appellate  court  to  reverse  a  judgment  of  conviction.^  And 
therefore,  where  a  circumstantial  incident  was  made  the  basis  of  a 
hypothesis  of  criminality,  which  was  equally  referable  to  an  inno- 
cent act,  it  was  error  for  the  trial  court  not  so  to  declare  as  matter 
of  law.  This  for  the  reason  that :  "  No  inference  of  fact  or  of 
law  is  reliably  drawn  from  premises  which  are  uncertain."  ^  '  The 
presumption  of  innocence  of  an  accused  attends  him  throughout 
the  trial,  and  has  relation  to  every  fact  that  must  be  established 
in  order  to  prove  his  guilt  beyond  a  reasonable  doubt.  /  This 
presumption  is  an  instrument  of  proof  created  by  law  in  favor  of 
one  accused  whereby  his  innocence  is  established  until  sufficient 
evidence  is  introduced  to  overcome  the  proof  which  the  law  has 
created,^  and  this  is  not  overcome  by  evidence  merely  of  facts 
which  are  not  plainly  inconsistent  with  innocence.^     It  is  the 

§318.   1  Union   Pacific  Coal   Co.  States    v.    Kenney,    90    Fed.    257; 

V.    United    States,     173    Fed.    737,  United  States  v.  Gooding,  12  Wheat. 

97  C.  C.  A.  578  (8th  Cir.) ;   Vernon  (U.  S.)  460,  6  L.  ed.  693 ;    Garrigan 

V.    United    States,     146    Fed.     121,  v.   United   States,    163   Fed.    16,    89 

123,  124,  76  C.  C.  A.  547,  549,  550  C.  C.  A.  494   (7th  Cir.) ;  Poetter  v. 

(8th  Cir.) ;  United  States  v.  Richards,  United  States,  155  U.  S.  438,  39  L. 

149  Fed.  443,  454 ;    Hayes  v.  United  ed.   214,    15  S.   C.   144 ;    Pettine  v. 

States,  169  Fed.  101,  103,  94  C.  C.  A.  New  Mexico,  201  Fed.  489,  119  C.  C. 

449    (8th    Cir.) ;     United    States    v.  A.  581  (8th  Cir.) ;  Hibbard  v.  United 

Hart,    78    Fed.    868,    873,    affirmed,  States,  172  Fed.  66,  72,  96  C.  C.  A. 

84  Fed.  799,  28  C.  C.  A.  612   (3d  554    (7th    Cir.);     United    States    v. 

Cir.) ;    United   States  v.   McKenzie,  King,  34  Fed.  302,  313. 
35  Fed.  826,  827,  828 ;   United  States  ^  Richards  v.   United  States,    175 

V.    Martin,    2    McLean,    250,     Fed.  Fed.  911,  99  C.  C.  A.  401  (8th  Cir.); 

Cas.  No.  15,731 ;    Wright  v.  United  United  States  v.  Ross,  92  U.  S.  281, 

States,  227  Fed.  855,  857,  142  C.  C.  283,  23  L.  ed.  707. 
A.  379   (8th  Cir.) ;  United  States  v.  '  xirby  v.  United  States,  174  U. 

Amedy,  11  Wheat.  (U.  S.)  392,  0  L.  S.  47-64,  43  L.  ed.  890,  19  S.  C.  574; 

cd.   502 ;     United  States  v.   Wilson,  Coffin  v.  United  States,  156  U.  S.  432, 

176    Fed.    806;     United    States    v.  39  L.  ed.  481,  493,  15  S.  C.  394. 
Guthrie,     171     Fed.     528 ;      United  <  Wolf  v.  United  States,  238  Fed. 

States  V.  Cole,  153  Fed.  801 ;   United  902,  900,  152  C.  C.  A.  36  (4th  Cii-.) ; 
2G2 


Chap.  XXXII]        PRESUMPTION    AS   TO    INNOCENCE  [§  318 

settled  law  in  criminal  procedure  that  the  burden  of  proof  never 
shifts  from  the  prosecution  to  the  defendant.  It  remains  through- 
out the  trial  with  the  Government.  The  plea  of  not  guilty  is 
unlike  a  special  plea  in  civil  actions  which,  admitting  the  case 
averred,  seeks  to  establish  substantive  grounds  of  defense.  It 
is  a  plea  that  puts  in  contestation  every  fact  essential  to  con- 
stitute the  offense  charged.  And  the  benefit  of  a  reasonable 
doubt  in  favor  of  the  accused  extends  to  every  matter  offered  in 
evidence  for  as  well  as  against  him.^  (The  burden  is  upon  the 
prosecution  to  furnish  to  the  jury  by  the  evidence  it  produces 
sound  reasons  for  the  conviction  of  the  defendant,  reasons  that 
shall  produce  and  maintain  in  their  minds  an  abiding  conviction 
of  his  guilt  to  a  moral  certainty.  )A  juror  should  not  be  required  to 
give  reasons  for  his  doubts  as  to  the  guilt  or  innocence  of  the 
accused.^  Following  CoflBn  v.  United  States,''  it  was  held  that 
defendants  are  entitled  to  an  instruction  referring  to  the  pre- 
sumption of  innocence  which  attends  an  accused  at  every  stage 
of  the  proceeding,  if  requested.^  A  defendant  starts  into  a  trial 
with  the  presumption  of  his  innocence ;  that  stays  with  him  until 
it  is  driven  out  of  the  case  by  the  evidence  beyond  a  reasonable 
doubt.^  But  whenever  the  proof  shows  the  accused's  guilt  beyond 
a  reasonable  doubt,  then  the  presumption  of  innocence  is  removed 
from  the  case.^°  The  presumption  of  the  accused's  innocence 
remains  with  the  defendant  until  such  time  in  the  progress  of  the 
case  that  the  jury  are  satisfied  of  his  guilt  beyond  a  reasonable 
doubt."     In  a  comparatively  recent  case  ^^  it  was  held,  that  an 

Coffin  V.  United  States,   156  U.  S.  » Cochran    &    Sayre    v.    United 

432,  458,  39  L.  ed.  481,  15  S.  C.  394 ;  States,  157  U.  S.  286,  39  L.  ed.  704, 

Allen  V.  United  States,  164  U.  S.  492,  15  S.  C.  628. 

500,  41  L.  ed.  528,  17  S.  C.  154.  9  Shepard   v.   United   States,   236 

6  Williams  v.   United  States,    158  Fed.  73,  80,  149  C.  C.  A.  283  (9th 

Fed.  30,  88  C.  C.  A.  296  (8th  Cir.) ;  Cir.). 

Glover  v.   United   States,    147   Fed.  "Shepard  v.  United  States,  236 

426,   77   C.   C.   A.   450    (8th   Cir.) ;  Fed.  73,  80,  149  C.  C.  A.  283  (9th 

Coffin  V.  United  States,    156  U.   S.  Cir.) ;  Allen  i>.  United  States,  164  U. 

432,  39  L.  ed.  481,   15  S.   C.  394 ;  S.  492,  500,  41  L.  ed.  528,  17  S.  C.  154. 

Kirby  v.  United  States,   174  U.   S.  "  Agnew    v.    United    States,    165 

47,  43  L.  ed.  890,  19  S.  C.  574.  U.  S.  36,  51,  41  L.  ed.  624,  17  S.  C. 

«  Pettine  v.  New  Mexico,  201  Fed.  235. 

489,  119  C.  C.  A.  581  (8th  Cir.).  12  xirby    i'.    United    States,     174 

'  156  U.  S.  432.             '  U.  S.  47,  43  L.  ed.  890,  19  S.  C.  574. 

263 


§  318]  EVIDENCE  [Chap.  XXXII 

Act  of  Congress  which  made  the  judgment  of  conviction  against  a 
thief  conclusive  evidence  against  the  receiver  of  the  stolen  prop- 
erty, that  the  property  described  in  the  judgment  had  been 
stolen,  was  unconstitutional  and  void  for  the  reason  that  the 
defendant  in  any  criminal  case  had  the  right  to  be  confronted  with 
the  witnesses.  It  was  held  in  that  case  that  the  judgment  of 
conviction  of  the  thief  was  only  evidence  of  the  conviction  and 
nothing  more  and  was  not  evidence  against  the  accused  charged 
with  the  receiving  of  the  stolen  property  from  the  thief.  Under 
the  rule  that  an  accused  will  be  presumed  innocent  until  he  is  proved 
guilty,  it  was  held  that  the  presumption  that  an  accused  would  not 
remain  a  party  to  a  scheme  to  defraud  after  his  co-conspirators 
had  adopted  a  criminal  course  under  Section  5480  by  using  the 
United  States  mails  in  furtherance  of  their  scheme,  overcame  the 
inference  of  fact  that  he  was  still  a  party  to  such  conspiracy 
arising  from  proof  of  his  former  connection  with  the  scheme.^^ 
The  position  of  the  defendant  in  this  connection  is  that  the  pre- 
sumption of  the  defendant's  innocence  in  a  criminal  case  is  stronger 
than  any  presumption  except  the  presumption  of  the  defendant's 
sanity  and  the  presumption  of  knowledge  of  the  law,  and  that  he 
was  entitled  to  a  direct  charge  that  the  presumption  of  the  defend- 
ant's innocence  was  stronger  than  the  presumption  that  the 
messengers,  who  deposited  these  papers  in  their  proper  boxes, 
took  them  from  the  mails.  If  it  were  broadly  true  that  the  pre- 
sumption of  innocence  overrides  every  other  presumption,  except 
those  of  sanity  and  knowledge  of  the  law,  it  would  be  impossible 
to  convict  in  any  case  upon  circumstantial  evidence,  since  the  gist 
of  such  evidence  is  that  certain  facts  may  be  inferred  or  presumed 
from  proof  of  other  facts.  Thus,  if  property  recently  stolen  be 
found  in  the  possession  of  a  certain  person,  it  may  be  presumed  that 
he  stole  it,  and  such  presumption  is  sufficient  to  authorize  the  jury 
to  convict,  notwithstanding  the  jiresumption  of  his  innocence. 
So,  if  a  person  be  stabbed  to  death,  and  another,  who  was  last 
seen  in  his  company,  were  arrested  near  the  spot  with  a  bloody 
dagger  in  his  possession,  it  would  raise,  in  the  absence  of  explan- 
atory evidence,  a  presumption  of  fact  that  he  had  killed  him. 
So,  if  it  were  shown  that  the  shoes  of  an  accused  person  were  of 
'3  Dalton  V.  United  States,  154  Fed.  4G1,  83  C.  C.  A.  317  (7th  Cir.). 
264 


Chap.  XXXII]      presumption  as  to  character  [§  319 

peculiar  size  or  shape,  that  footmarks  were  found  in  the  mud  or 
snow  of  corresponding  size  or  shape,  it  would  raise  a  presumption 
more  or  less  strong,  according  to  the  circumstances,  that  those 
marks  had  been  made  by  the  feet  of  the  accused  person.^* 

§  319.   Presumption  as  to  Character. 

It  has  been  held  by  some  of  the  Federal  Courts  that  where  no 
testimony  has  been  offered  as  to  the  previous  character  of  the 
accused,  a  presumption  of  good  character  exists  in  his  favor.^ 
But  the  doctrine  was  denied  in  Price  v.  United  States,^  which, 
reviewing  the  authorities,  holds  that  unless  the  defendant  puts 
his  character  in  issue  by  producing  evidence  himself,  it  is  wholly 
outside  the  case.  On  the  other  hand,  there  is  no  presumption  in 
regard  to  his  character  being  either  good  or  bad ;  for  the  reason 
that  neither  the  court  nor  counsel  can  properly  refer  to  the 
defendant's  character  as  an  element  to  be  considered  by  the  jury. 
Other  courts  have  taken  the  same  view.^  The  point  was  finally 
settled  by  the  United  States  Supreme  Court  in  Greer  v.  United 
States.^  That  court  said,  of  the  judgment  affirmed  :  "  This  judg- 
ment was  in  accordance  with  a  carefully  reasoned  earlier  decision 
in  the  same  circuit  (Price  v.  United  States,  L.  R.  A.  1915,  D, 
1070,  132  C.  C.  A.  1,  218  Fed.  149)  with  an  acute  statement  in 
United  States  v.  Smith,  217  Fed.  839,  and  with  numerous  State 
cases  and  textbooks.  But  as  other  circuit  courts  of  appeal  had 
taken  a  different  view  (Mullen  v.  United  States,  46  C.  C.  A.  22, 
106  Fed.  892,  Garst  v.  United  States,  103  C.  C.  A.  469,  180  Fed. 
339,  344,  345),  also  taken  by  other  cases  and  textbooks,  it  becomes 
necessary  for  this  court  to  settle  the  doubt.  Obviously  the  char- 
acter of  the  defendant  was  a  matter  of  fact,  which,  if  investigated, 
might  turn  out  either  way.     It  is  not  established  as  matter  of  law, 

"  Dunlop  V.  United  States,  165  U.  '  United    States    v.    Smith,     217 

S.  486,  502,  41  L.  ed.  799,  17  S.  C.  375.  Fed.     839 ;      Chambliss     v.     United 

§  319.    1  Mullen  v.  United  States,  States,  218  Fed.   154,   132  C.  C.  A. 

106  Fed.  892,  46  C.  C.  A.  22  (6th  112    (8th    Cir.) ;     Greer    v.    United 

Cir.);     United    States    v.    Guthrie,  States,  240  Fed.  320,   153  C.  C.  A. 

171     Fed.     528;      Garst    v.     United  246  (Sth  Cir.). 

States,  180  Fed.  339,  344,  103  C.  C.  A.  "  245  U.   S.   559,   62  L.   ed.   469, 

469  (4th  Cir.).  38  S.  C.  209,  Affirming,  240  Fed.  320, 

2  218  Fed.  149,  152,  132  C.  C.  A.  153  C.  C.  A.  246  (8th  Cir.). 
1  (Sth  Cir.). 

265 


§  319]  EVIDENCE  [Chap.  XXXII 

that  all  persons  indicted  are  men  of  good  character.  If  it  were  a 
fact  regarded  as  necessarily  material  to  the  main  issues  it  would  be 
itself  issuable,  and  the  government  would  be  entitled  to  put  in 
evidence  whether  the  prisoner  did  so  or  not.  As  the  government 
cannot  put  in  evidence  except  to  answer  evidence  introduced  by 
the  defense,  the  natural  inference  is  that  the  prisoner  is  allowed 
to  try  to  prove  a  good  character  for  what  it  may  be  worth,  but 
that  the  choice  whether  to  raise  that  issue  rests  with  him.  The 
rule  that  if  he  prefers  not  to  go  into  the  matter  the  government 
cannot  argue  from  it  would  be  meaningless  if  there  were  a  pre- 
sumption in  his  favor  that  could  not  be  attacked.  For  the  failure 
to  put  on  witnesses,  instead  of  suggesting  unfavorable  comment, 
would  only  show  the  astuteness  of  the  prisoner's  counsel.  The 
meaning  must  be  that  character  is  not  an  issue  in  the  case  unless 
the  prisoner  chooses  to  make  it  one ;  otherwise  he  would  be  foolish 
to  open  the  door  to  contradiction  by  going  into  evidence  when 
without  it  good  character  would  be  incontrovertibly  presumed. 
Addison  r.  People,  193  111.  405,  419,  62  N.  E.  235."  ' 

§  319  a.   Good  Character,  How  Proven. 

Good  character  of  the  defendant  may  be  established  either  by 
positive  evidence,  the  witness  testifying  of  his  personal  knowledge 
that  the  character  of  the  defendant  was  good,^  or  by  negative 
testimony,  the  witness  testifying  that  he  knew  the  defendant  for 
many  years  in  a  particular  locality  and  that  he  never  heard  any- 
thing against  the  character  or  reputation  of  the  defendant  or  that 
he  never  heard  the  matter  discussed.  Negative  evidence  is  the 
most  cogent  evidence  of  a  man's  good  character  and  reputation, 
because  a  man's  character  is  not  talked  about  until  there  is  some 
fault  to  be  found  with  it.^  The  right  to  introduce  any  competent 
evidence  of  his  good  character  and  have  it  impartially  submitted 
to  the  jury  is  a  substantial  right  which  should  not  be  impaired 
by  the  trial  Judge.^ 

^SeeaisoDe  Moss  t;.  United  States,  v.  State,  87  Miss.  330,  39  So.  522 

2.50  Fed.  87,  162  C.  C.  A.  259  (8th  People  t).  Davis,  21  Wend.  (N.Y.)  309 

Cir.).  Gandolfo  v.  State,  11  Ohio  St.   114 

§  319  a.    1  Edgington    v.    United  State  v.  Lee,  22  Minn.  407 ;  People  v. 

States,  164  U.  S.  361,  41  L.  ed.  467,  Woods,  172  N.  W.  (Mich.)  383. 
17  S.  C.  72.  3  People   v.   Woods,    172,    N.   W. 

MO  Rul.  C.  L.  p.  954;    Sinclair  (Mich.)  384. 

266 


Chap.  XXXII]  PRESUMPTIONS  [§  322 

§  320,   Presumption  of  Continuation. 

From  the  existence  at  one  time  of  a  certain  condition  of  things 
the  same  state  or  condition  of  things  is  presumed  to  continue  until 
the  contrary  is  shown.  But  this  rule  is  limited  in  its  application 
to  the  continuance  of  such  conditions  as  are  of  a  continuing  nature.^ 
So,  the  fact  that  an  accused  had  charge  of  the  mailing  of  letters 
and  literature  for  a  fraudulent  securities  company  in  November, 
1902,  was  held  insufficient  to  justify  a  presumption  that  he  con- 
tinued indefinitely  thereafter  in  the  same  employment.^  And 
it  has  been  held  there  was  no  presumption  of  the  accused's  con- 
tinuance for  eight  years  as  a  member  of  the  National  Guard  .^ 
Where  the  presumption  of  continuance  is  a  weak  one,  it  is  over- 
come by  the  presumption  of  innocence.^ 

§  321.  Presumptions  of  Knowledge. 

Every  one  is  presumed  to  know  the  law  of  the  land,  both  common 
law  and  statutory  law.^  It  has  been  held  that  in  criminal  as  well 
as  in  civil  affairs  every  one  is  presumed  to  know  whatever  he  can 
learn  upon  inquiry,  when  he  has  facts  in  his  possession  which 
suggest  the  inquiry.  But  this  knowledge  of  the  defendant  must 
be  affirmatively  shown  by  the  government.^  A  corporation 
president's  knowledge  of  the  falsity  of  a  financial  statement 
which  he  signed  has  been  presumed ;  ^  and  an  accused's  knowl- 
edge that  all  railroads  in  the  United  States  are  mail  routes  has 
been  presumed.^ 

§  322.  Presiunptions  —  Regularity  of  Public  Courts,  Officers' 
Acts,  Etc. 

The  proceedings  of  courts  of  record  and  of  their  officers  acting 
within   their  jurisdiction   are   presumed   to   have   been   regular. 

§  320.   1  Brooks  v.  United  States,  Fed.    461,    83    C.    C.    A.    317    (7th 

146  Fed.  223,  229,  76  C.  C.  A.  581  Cir.). 

(8th  Cir.) ;    Steers  v.  United  States,  §  321.  ^  Hamburg-American  Steam 

192  Fed.  1,  112  C.  C.  A.  423  (6th  Packet  Co.  v.  United  States,  250  Fed. 

Cir.) ;    Davis   v.   United   States,   37  747,  758,  163  C.  C.  A.  79  (2d  Cir.). 
App.  D.  C.  126.  2  United  States  v.   Houghton,    14 

2  Brooks    V.    United    States,    146  Fed.  544,  547. 

Fed.  223,  76  C.  C.  A.  581  (8th  Cir.).  ^  gettman  v.  United  States,  224 

3  Breitmayer  v.  United  States,  249  Fed.  819,  140  C.  C.  A.  265  (6th  Cir.). 
Fed.  929,  162  C.  C.  A.  127  (6th  Cir.).  ■*  United  States  v.  HaU,  206  Fed. 

^Dalton    V.    United .  States,    154      484. 

267 


§  322]  EVIDENCE  [Chap.  XXXII 

In  all  cases  where  it  appears  that  it  was  possible  and  competent 
for  a  court  to  have  been  in  session  on  a  certain  day,  and  there  is 
nothing  in  the  record  to  show  that  the  terms  and  conditions 
authorizing  a  session  have  not  been  fully  answered,  it  must  be 
presumed  that  what  was  done  by  the  court  below  was  properly 
and  legally  done,  and  that  the  requisite  steps  necessary  to  con- 
stitute a  legal  court  were  taken.^  If  no  evidence  has  been  offered 
or  presented  to  the  court  that  either  improper  or  illegal  evidence 
was  used  before  the  grand  jiu-y  to  secure  the  indictment,  the 
presumption  is  that  the  proceedings  before  the  grand  jury  were 
in  all  respects  regular,-  that  the  indictment  was  based  on  sufficient 
evidence,  and  that  the  required  number  of  jurors  concurred.' 
Where  an  indictment  has  been  regularly  returned  in  open  court, 
the  presumption  is  that  the  grand  jury,  the  court  officials,  and  the 
court  properly  discharged  their  respective  duties.^  The  pre- 
sumption of  legality  and  regularity  of  official  acts  applies  in  criminal 
cases. ^  The  officers  and  employees  of  the  postal  service  are  pre- 
sumed to  have  done  their  duty  and  made  delivery  of  all  properly 
addressed  mail  matter  intrusted  to  their  care ;  and  the  officials 
of  the  immigration  department  are  presumed  to  have  kept  what 
they  received.®  The  mailing  of  letters  postage  paid  raises  a  pre- 
sumption of  their  receipt  by  the  addressee.^ 

§  323.  Presumptions  from  Failure  to  Produce  Evidence  or 
to  Testify  One's  Self.^ 

There  can  be  no  presumption  against  a  defendant  merely 
because  he  has  not  taken  the  stand  as  a  witness  in  his  own  favor .'^ 

§  322.   >  Stockslager     v.      United  States,  213  Fed.  10,  130  C.  C.  A.  85 

States,  116  Fed.  590,  595,  54  C.  C.  A.  (2d  Cir.). 

46  (9th  Cir.).  « United  States  v.   Feldman,   247 

2  United  States  v.  Coyle,  229  Fed.  Fed.  482,  159  C.  C.  A.  536  (2d  Cir.). 

256.  ^  Watlington    v.     United    States, 

'  United     States     v.     Wilson,     6  233  Fed.  247,  147  C.  C.  A.  253  (8th 

McLean,  604,  Fed.  Cas.  No.  16,737.  Cir.) ;    Kimberly  v.  Arms,  129  U.  S. 

*  Carhsle    v.    United    States,    194  512,  32  L.  ed.  764,  9  S.  C.  355. 

Fed.  827,  829,  114  C.  C.  A.  531  (4th  §  323.   i  See  also  charge  to  jury 

Cir.).  enlarging  upon  this  subject  and  the 

'  May  V.  United  States,  236  Fed.  statute  in  relation  to  same. 

495,   149  C.   C.  A.  547   (8th  Cir.);  ^  United     States    v.     Pendergast, 

United    States   v.    Elton,    222    Fed.  32  Fed.  198 ;    United  States  v.  Kim- 

428;   Norddeutschen  Lloyd  v.  United  ball,  117  Fed.  156. 

268 


Chap.  XXXII]     PRESUMPTIONS  AS  TO  defendant's  guilt    [§  323 

No  presumption  is  raised  against  the  defendant  by  reason  of 
his  failure  to  call  witnesses  or  introduce  evidence  which  is  equally 
accessible  to  the  prosecution  and  the  defense.^  No  presumption 
arises  against  a  defendant  from  his  failure  to  call  his  accomplice 
as  a  witness.^  It  is  sometimes  said  that  if  a  party  has  it  peculiarly 
within  his  power  to  produce  witnesses  whose  testimony  would 
elucidate  the  transactions,  the  fact  that  he  does  not  do  it  creates 
a  presumption  that  the  testimony,  if  produced,  would  be  unfavor- 
able.^ But  this  presumption  does  not  apply  to  every  fact  in  the 
case  which  it  may  be  in  the  power  of  the  defendant  to  prove. 
He  is  not  bound  to  anticipate  every  fact  which  the  government 
may  wish  to  show  in  the  course  of  the  trial,  and  produce  evidence 
of  that  fact.  So,  where  a  wife  was  not  a  competent  witness, 
either  for  or  against  her  husband,  and  he  was  under  no  obligation 
to  bring  her  into  court  for  identification,  no  inference  could  be 
drawn  from  his  failure  to  do  so.^  A  defendant  need  not  introduce 
expert  testimony  to  prove  that  an  envelope  addressed  to  his  wife, 
containing  the  matter  alleged  to  be  stolen,  was  not  in  his  hand- 
writing. Especially  is  this  so  when  the  defendant  takes  the  stand 
and  denies  the  genuineness  of  the  writing.  The  court  may  not, 
in  its  charge,  comment  on  the  defendant's  failure  to  produce  such 
expert  testimony,  and  to  do  so  is  reversible  error. ^  It  is  improper 
for  the  court  to  comment  upon  the  failure  of  the  defendant  to 
produce  certain  letters  which  witnesses  had  testified  were  written 
to  him.  Such  conduct  on  the  part  of  the  court  constitutes  an 
infringement  of  the  constitutional  rights  of  the  accused  not  to 
furnish  evidence  against  himself.* 

»WUson    V.    United    States,    149  Fed.   213,    136    C.  C.  A.   623    (8th 

U.  S.  60,  37  L.  ed.  650,   13  S.  C.  Cir.). 

765.  sHibbard  v.   United  States,    172 

<  State  V.  Cousins,  58  Iowa,  250.  Fed.  66,  96  C.  C.  A.  554  (7th  Cir.) ; 

^  Graves    v.    United    States,    150  McKnight  v.  United  States,  115  Fed. 

U.  S.  118,  37  L.  ed.  1021,  14  S.  C.  972,    54   C.   C.   A.   358    (6th   Cir.); 

40;    see  also,  Spear  v.  United  States,  Boyd   v.    United   States,    116   U.   S. 

246  Fed.  250,  158  C.  C.  A.  410  (8th  616,  29  L.  ed.  746,  6  S.  C.  524 ;  Wil- 

Cir.) ;    The  Bolton  Castle,  250  Fed.  son  v.  United  States,   149  U.  S.  60, 

403,  162  C.  C.  A.  473  (1st  Cir.).  37  L.  ed.  650,  13  S.  C.  765,  but  see 

•  Graves    v.    United    States,    150  Hamburg-American     Steam     Packet 

U.  S.  118,  37  L.  ed.  1021,  14  S.  C.  40.  Co.  v.  United  States,  250  Fed.  747, 

'  Perera    v.    United  -  States,    221  768,  163  C.  C.  A.  79  (2d  Cir.). 

269 


/■2- 


§  324]  EVIDENCE  [Chap.  XXXII 

§  324.   Presumptions  from  Possession  of  Property. 

Possession  of  the  fruits  of  crime,  recently  after  its  commission, 
justifies  the  inference  that  the  possession  is  guilty  possession,  and, 
though  only  prima  facie  evidence  of  guilt,  may  be  of  controlling 
weight  unless  explained  by  the  circumstances  or  accounted  for  in 
some  way  consistent  with  innocence.^  If  there  is  nothing  on  the 
face  of  the  article  that  negatives  the  presumption  of  ownership 
arising  out  of  possession,  the  proper  rule  is  held  to  be  that  the 
jury  is  authorized,  if  they  see  fit,  to  infer  ownership  from  the  fact 
of  possession  unexplained.  The  explanation,  when  given,  and  its 
reasonableness,  is  a  question  for  the  jury,  and  does  not  affect 
the  admissibility  of  the  evidence  unless  it  shows  without  conflict 
that  the  ownership  was  elsewhere  than  in  the  possession.  Volun- 
tary surrender  of  an  article  like  a  pocketbook  or  diary  without 
denial  of  ownership  would  strengthen  the  inference.^  Presump- 
tions of  this  and  the  like  kind,  rebuttable,  and  explainable  by  the 
accused,  are  within  the  competency  of  Congress  to  create.  There 
is  a  statutory  presumption  of  guilt  under  the  Importation  of 
Smoking  Opium  Act,  1914,  from  the  possession  of  the  drug.^ 
But  to  raise  the  presumption  of  guilt  from  possession  of  the  fruits 
or  the  instruments  of  crime  they  must  have  been  found  in  the 
accused's  exclusive  possession.  A  constructive  possession  is  not 
sufficient  to  hold  a  person  responsible  on  a  criminal  charge.^ 

CONFESSIONS 

§  325.   Definition  and  Classification  —  Voluntary  Statements. 

A  confession,  in  criminal  law,  is  the  voluntary  admission  or 
declaration  made  by  a  person  who  has  committed  a  crime  or  mis- 
demeanor, to  another,  of  the  agency  or  participation  which  he 
had  in  the  same.^     Judicial  confessions  are  those  made  before  a 

§  324.   '  Wilson  v.  United  States,  Fed.  428,  162  C.  C.  A.  498  (5th  Cir.) ; 

162  U.  S.  613,  40  L.  ed.  1090,  16  S.  Luria  v.   United   States,    231    U.    S. 

C.  895;    McNamara  v.  Henkel,  226  9,  58  L.  ed.  101,  34  S.  C.  10;  United 

U.  S.  520,  57  L.  ed.  330,  33  S.  C.  States  v.  Yee  Fing,  222  Fed.  154. 
146.  *  Sorenson  v.   United  States,   168 

2  Dean  t^.  United  States,  246  Fed.  785,  798,  94  C.  C.  A.  181  (8th 
Fed.  568,  575  (a  check  raising  case),  Cir.). 

158  C.  C.  A.  538  (5th  Cir.).  §  325.   '  Bouvier,  Law  Diet.  Peo- 

3  Gee  Woe  t;.  United  States,  250      pie  v.  Parton,  49  Cul.  632. 

270 


Chap.  XXXII]  involuntary  statements  [§  326 

magistrate  or  in  open  court.  Extrajudicial  confessions  are  those 
made  elsewhere.  A  mere  statement  to  a  third  person  which  has 
no  tendency  to  establish  the  accused's  guilt  or  to  operate  to  his 
prejudice  is  not  a  confession ;  confessions  are  only  admitted  as 
being  statements  against  the  interest  of  the  party  by  whom  they 
are  claimed  to  have  been  made.^  A  confession  is,  of  course,  always 
admissible  when  made  without  inducement.^  Evidence  of  con- 
fessions should  never  be  admitted  before  a  grand  jury  except  under 
the  direction  of  the  court,  or  unless  the  prosecuting  officer  of  the 
government  is  present  and  carefully  makes  the  preliminary  in- 
quiries necessary  to  render  the  evidence  admissible.^  In  the 
absence  of  statutory  regulations  on  the  subject,  testimony  and 
written  statements,  voluntarily  given  or  made  by  a  party  or  wit- 
ness in  a  judicial  proceeding,  are,  as  admissions  and  confessions, 
competent  against  him  on  the  trial  of  any  issue  in  a  criminal  case 
to  which  thej^  are  pertinent ;  and  statements  made  by  a  party  in  a 
judicial  inquiry  are  considered  voluntary  if  he  might  have  objected 
to  answering  on  the  ground  of  self-incrimination,  and  failed  to  do 
so.^  Conversations,  not  induced  by  duress,  intimidation  or  other 
improper  influences,  but  perfectly  voluntary,  between  a  deputy 
marshal  and  the  defendant  have  been  held  properly  admitted.^ 
Statements  made  by  the  defendant  to  a  witness  relating  to  the 
transaction  charged  as  a  crime,  are  not  subject  to  the  rules  govern- 
ing the  admission  of  confessions  where  the  defendant,  in  such  state- 
ments, while  admitting  the  commission  of  the  acts  charged,  denied 
their  criminality  and  justified  them.^ 

§  326.   Involuntary  Statements. 

It  is  well  settled  that  confessions  not  voluntarily  made  are  in- 
admissible against  an  accused,  and  the  courts  are  astute,  and 

2  Ballew  V.  United  States,  160  U.  S.  *  Ensign     v.     Pennsylvania,     227 

187,  193,  40  L.  ed.  388,  16  S.  C.  263.  U.  S.  592,  57  L.  ed.  658,  33  S.  C.  321 ; 

'Bram     v.     United    States,     168  In  re  Kanter,  117  Fed.  356;   Tucker 

U.  S.  532,  42  L.  ed.  568,  18  S.  C.  183 ;  v.  United  States,  151  U.  S.  164,  38 

Harrold  v.  Oklahoma,   169  Fed.  47,  L.  ed.  112,  14  S.  C.  299. 

94  C.  C.  A.  415  (8th  Cir.) ;    United  « Perovich  v.  United  States,   205 

States  V.  Negro  Charles,  2  Cr.  C.  C.  U.  S.  86,  91,  51  L.  ed.  722,  27  S.  C. 

76,  Fed.  Cas.  No.  14,786.  456. 

*  United  States  v.  Kilpatrick,   16  '  Dimmick  v.  United  States,   116 

Fed.  765,  773.                    -  Fed.  825,  54  C.  C.  A.  329  (9th  Cir.). 

271 


§  326]  EVIDENCE  [Chap.  XXXII 

properly  so,  in  protecting  the  rights  of  accused  persons  against 
confessions  obtained  by  duress  or  through  hope  or  fear.^  To 
entitle  the  Government  to  introduce  in  evidence  the  statement  or 
confession  of  the  accused,  whether  oral  or  written,  it  must  appear 
that  it  was  made  voluntarily  and  without  compulsion  or  induce- 
ment of  any  sort.  Confessions  of  a  defendant  are  inadmissible  if 
made  under  any  threat,  promise  or  encouragement  of  any  hope  or 
favor.^  The  burden  of  proof  that  no  improper  inducements  or 
threats  were  made  when  the  confession  was  made  is  with  the 
prosecution.^  An  involuntary  confession  of  an  accused  person, 
incompetent  to  prove  the  case  of  the  prosecution  in  chief,  is  in- 
competent to  impeach  the  accused  after  he  has  testified  in  his 
own  behalf  upon  other  subjects  only ;  (first)  because  such  a  con- 
fession is  unworthy  of  belief ;  and  (second)  because  its  introduction 
would  violate  the  constitutional  guaranty  that  the  accused  shall 
not  be  compelled  to  testify  against  himself.^  In  a  prosecution  for 
concealment  of  assets  from  a  bankrupt's  trustee,  filed  schedules 
are  not  admissible.^  But  where  a  party  or  witness  is  indicted  for 
perjury,  the  immunity  granted  by  Section  860  is  not  operative.^  In 
criminal  trials  in  the  United  States  Courts,  where  a  question  arises 
whether  a  confession  is  incompetent  because  not  voluntary,  the  issue 
is  controlled  by  that  portion  of  the  Fifth  Amendment  of  the  Consti- 
tution of  the  United  States,  commanding  that  no  person  "  shall  be 
compelled,  in  any  criminal  case,  to  be  a  witness  against  himself."  ^ 

§326.   'Shaw    v.    United   States,  C.   C.    293,   Fed.   Cas.   No.   16,060; 

180  Fed.  348,  355,  103  C.  C.  A.  494  (promises;  confessions  excluded). 
(6th  Cir.);    Bram  v.  United  States,  ^  wilson    v.    United    States,    162 

168  U.  S.  532,  42  L.  ed.  568,  18  S.  U.  S.  613,  40  L.  ed.  1090,  16  S.  C. 

C.  183  ;  Hopt  V.  Utah,  110  U.  S.  574,  895. 

584,  28  L.  ed.  262,  4  S.  C.  202 ;  United  ^  Hopt  v.  Utah,    110  U.   S.   574, 

States  V.  James,  60  Fed.  257,  26  L.  587,  28  L.  ed.  262,  4  S.  C.  202 ;   Har- 

II.  A.  418 ;  United  States  v.  Maunicr,  rold  v.   Oklahoma,    169  Fed.  47,   94 

1  Hughes  412,  Fed.  Cas.  No.  15,746  C.  C.  A.  415  (8th  Cir.). 
(threats ;   confessions  excluded) ;  So-  ''  Harrold  v.  Oklahoma,   169  Fed. 

rensen  v.  United  States,  143  Fed.  820,  47,  54,  94  C.  C.  A.  415  (8th  Cir.). 
74  C.  C.  A.  468  (8th  Cir.) ;  (induce-  ^  Revised  Statutes,  §  860 ;    Cohen 

ments   by    officers ;     confessions    ex-  v.  United  States,    170  Fed.  715,   96 

eluded) ;     United   States   v.    Hunter,  C.  C.  A.  35  (4th  Cir.). 
1  Cr.  C.  C.  317,  Fed.  Cas.  No.  15,424 ;  «  United  States  v.  Brod,  176  Fed. 

United  States  v.  Pumphreys,   1  Cr.  165,  170. 

C.    C.    74,   Fed.    Cas.    No.    16,097;  UJram  v.  United  States,   168  U. 

United  States  v.  Pocklington,  2  Cr.  S.  532,  545,  42  L.  ed.  568,  18  S.  C.  183. 
272 


Chap.  XXXII]      PRELIMINARY   INQUIRY   BY  THE   COURT  [§  328 

§  327.   Confessions  under  Arrest,  under  Suspicion  —  Warning. 

The  fact  that  a  confession  is  made  by  an  accused  person,  while 
under  arrest  for  the  offense  or  when  drawn  out  by  the  questions  of 
an  officer,  does  not  necessarily  render  the  confession  involuntary,^ 
provided,  of  course,  it  is  not  extorted  by  inducements  or  threats.^ 
Admissions  by  one  under  arrest,  charged  with  a  crime,  to  a  com- 
mittee of  citizens  met  to  investigate  the  charge,  at  a  time  when 
there  was  no  public  excitement  or  danger  of  violence  to  him,  and 
not  induced  by  threats  and  promises,  were  held  voluntary  and 
admissible.^  The  mere  presence  of  an  officer,  without  more,  will 
not  invalidate  a  confession.  He  must  be  in  authority  over  the 
prosecution  and  prisoner,  and  sanction  the  threat  or  promise 
held  out  by  others.^ 

§  328.   Preliminary  Inquiry  by  the  Court. 

The  elements  entering  into  the  preliminary  inquiry  by  the 
judge,  where  he  is  called  on  to  determine  the  competency  of  the 
evidence,  are  these:  (1)  Has  the  person  to  whom,  or  in  whose 
presence,  or  by  whose  sanction,  the  alleged  confession  was  made, 
any  authority  ?  (2)  Were  the  threats  or  promises  of  that  character 
that  should  exclude  the  confession  as  one  made  involuntarily? 
Both  these  questions  being  answered  in  the  affirmative,  the 
evidence  is  excluded  as  a  matter  of  law,  the  judge  trying  the  facts 
as  in  other  cases  of  mixed  questions  of  law  and  fact ;  but,  either 
being  answered  in  the  negative,  the  evidence  goes  to  the  jury,  and 
thereupon  they  try  this  as  they  do  all  the  other  facts  of  the  case, 
giving  such  weight  to  the  confession  as  they  see  fit.  All  evidence 
of  confessions  does  not  pass  through  this  ordeal  of  trial  by  the 
judge,  except  to  determine  whether  it  belongs  to  the  one  class  or 

§  327.   1  Shaw   v.    United   States,  S.  C.  787 ;    Wilson  v.  United  States, 

180  Fed.  348,  355,  103  C.  C.  A.  494  162  U.  S.  613,  633,  40  L.  ed.  1090, 

(6th  Cir.) ;    Sparf  v.  United  States,  16  S.  C.  895. 

156  U.  S.  51,  55,  39  L.  ed.  343,  15  ^  pigrce  v.  United  States,  160  U. 

S.  C.  273;  Perovich  v.  United  States,  S.  355,  40  L.  ed.  454,  16  S.  C.  321. 
205  U.  S.  86,  91,  51  L.  ed.  722,  27  '  Jackson    v.    United    States,    102 

S.  C.  456;    Hardy  v.  United  States,  Fed.  473,  483,  42  C.  C.  A.  452  (9th 

186  U.  S.  224,  46  L.  ed.  1137,  22  S.  Cir.). 

C.   889;    United  States  v.   Kimball,  ^United  States  v.  Stone,   8  Fed. 

117  Fed.   156;    BurreU  v.  Montana,  232,262. 
194  U.  S.   572,  48  L. 'ed.    1122,   24 

VOL.  1—18  273 


§  328]  EVIDENCE  [Chap.  XXXII 

the  other ;  for,  if  they  have  been  made  to  persons  not  in  authority, 
whether  voluntarily  or  involuntarily,  they  go  to  the  jury,  to  be 
by  them  discarded  if  they  find  that  they  have  been  extorted  by 
threats  or  induced  by  promises  of  that  kind  that  "  the  prisoner 
would  be  likely  to  tell  an  untruth  from  fear  of  the  threat  or  hope 
of  profit  from  the  promise."  ^  It  is  laid  down  that  it  is  not 
essential  to  the  admissibility  of  a  confession  that  it  should  appear 
that  the  person  was  warned  that  what  he  said  would  be  used 
against  him,  if  the  confession  was  voluntary.-  The  fact  that  a 
confession  is  made  under  suspicion  does  not  of  itself  render  it 
involuntary.^ 

§  329.  Whether  Voluntary  or  Involuntary  —  For  Court  or 
Jury? 

Where  there  is  a  conflict  of  evidence  as  to  whether  a  confession 
is  or  is  not  voluntary,  if  the  court  decides  that  it  is  admissible,  the 
question  may  be  left  to  the  jury  with  the  direction  that  they  should 
reject  the  confession  if  upon  the  whole  evidence  they  are  satisfied 
it  was  not  the  voluntary  act  of  the  defendant.^  The  question 
whether  or  not  an  accused  made  an  alleged  confession,  or  any  part 
of  it,  asked  him  on  cross-examination,  to  lay  the  foundation  for 
impeachment  by  proof  of  contradictory  statements  in  the  con- 
fession, is  not  competent  cross-examination  where  the  accused  has 
not  testified  regarding  it,  because  it  is  not  germane  to  the  subjects 
of  his  direct  examination,  and  because  the  prosecutor  could  not 
prove  the  statements  in  the  confession  as  a  part  of  his  case  in 
chief.  It  is  the  court's  duty  to  determine  whether  an  alleged 
confession  was  voluntary  or  involuntary  and  it  is  error  to  permit 
the  introduction  of  the  evidence  on  that  question  to  the  jury.^ 
The  weight  of  the  confession  is  for  the  determination  of  the 

§328.   1  United   States   v.    Stone,  162  U.  S.  613,  40  L.  ed.   1090,   16 

8  Fed.  232,  256,  257.  S.  C.  895 ;    Hardy  v.  United  States, 

2  Powers    V.    United    States,    223  3  App.  D.  C.  35 ;    Podolin  v.  Lesher 

U.  S.  303,  313,  56  L.  ed.  448,  32  S.  Warner   Dry   Goods   Co.,   210   Fed. 

C.  281 ;  Wilson  v.  United  States,  162  97,  126  C.  C.  A.  611  (3d  Cir.). 
U.  S.  613,  623,  40  L.  ed.   1090,   16  ^  Harrold  v.   Oklahoma,  169  Fed. 

S.  C.  895.  47,  54,  94  C.  C.  A.  415  (8th  Cir.). 

'  United  States  y.  Graff,  14  Blatchf,  See  also  United  States  v.  Stone,  8 

381,386,  Fed.  Cas.  No.  15,244.  Fed.  232,  256. 

§  329.   1  Wilson  v.  United  States, 
274 


Chap.  XXXII]  NECESSITY   FOR   CORROBORATION  [§  331 

jury.^     They  are  not  bound  to  accept  a  confession  in  its  entirety 
as  true.'* 

§  330.   Offer  in  Entirety. 

The  confession  must  be  offered  in  its  entirety.'  If  the  prose- 
cution rehes  on  a  confession  alone,  the  prisoner  is  entitled  to  the 
full  effect  of  that  portion  of  the  confession  which  goes  in  his  favor. 
In  other  words,  if  the  confession  is  used,  the  whole  of  it  must  be 
taken  together.  But,  of  course,  the  prosecution  is  at  liberty  to 
contradict  any  part  of  the  confession,  if  it  can  do  so.^ 

§  331.  Necessity  for  Corroboration. 

The  general  consensus  of  judicial  opinion  in  the  courts  of  the 
United  States  is  that  some  sort  of  corroboration  of  a  confession 
is  necessary  to  a  conviction.'  A  conviction  cannot  be  had  on  the 
extrajudicial  confession  of  the  defendant,  unless  corroborated  by 
proof  aliunde  of  the  corpus  delicti.  Full,  direct  and  positive 
evidence,  however,  of  the  corpus  delicti  is  not  indispensable.  A 
confession  will  be  sufficient  if  there  be  such  extrinsic  corroborative 
circumstances  as  will,  when  taken  in  connection  with  the  con- 
fession, establish  the  prisoner's  guilt  in  the  minds  of  the  jury 
beyond  a  reasonable  doubt.^    But  the  corpus  delicti  may  be  proven 

3  United  States  v.  Stone,  8  Fed.  Cliff.  5,  Fed.  Cas.  No.  16,707 ;  United 

232.  States  v.  Boese,  46  Fed.  917  ;  United 

*  United  States  t;.  Prior,  5  Cr.  C.  States    v.  Mayfield,    59    Fed.     118; 

C.  37,  Fed.  Cas.  No.  16,092 ;  United  Flower  v.   United  States,    116  Fed. 

States      V.      Smith,       Fed.       Cas.  241,   52   C.   C.   A.   271    (5th   Cir.) ; 

No.  16,342  a;  Contra:  United  States  Naftzger  v.  United  States,  200  Fed. 

V.  Barlow,  1  Cr.  C.  C.  94,  Fed.  Cas.  494,   118  C.  C.  A.  598   (8th  Cir.); 

No.  14,521,  where  the    confession    of  Rosenfeld  v.  United  States,  202  Fed. 

a  prisoner  being  given  in  evidence,  469,  120  C.  C.  A.  599  (7th  Cir.). 
the   court  instructed  the  jury   that  2  Vreitmayer  v.  United  States,  249 

they  must  believe  or  reject  the  whole.  Fed.  929,  933,  162  C.  C.  A.  127  (6th 

§  330.   1  United    States    v.    Prior,  Cir.) ;     Rosenfeld   v.    United   States, 

5  Cr.  C.  C.  37,  Fed.  Cas.  No.  16,092 ;  202  Fed.  469,  120  C.  C.  A.  599  (7th 

United  States  v.    Smith,    Fed.  Cas.  Cir.);   Flower    r.  United  States,  116 

No.  16,342  a;   United  States  v.  Long,  Fed.  241,  52  C.  C.  A.  271  (5th  Cir.) 

30  Fed.  678.  Naftzger  v.  United  States,  200  Fed 

2  United  States  v.  Long,  30  Fed.  494,  499,  118  C.  C.  A.  598  (8th  Cir.) 

678.  Isaacs  v.  United  States,   159  U.  S 

§  331.   1  Daeche  v.  United  States,  487,  490,  40  L.  ed.  229,  16  S.  C.  51 

250  Fed.  566,  162   C.  C.  A.  582  (2d  Goff  i'.  United  States,  257  Fed  294 

Cir.) ;    United  States  v^  WilUams,  1  —  C.  C.  A.  —  (8th  Cir.). 

275       * 


§  331]  EVIDENCE  [Chap.  XXXII 

by  the  confessions  of  the  defendant  followed  by  corroborating 
circumstances  which  in  the  judge's  opinion  will  go  to  fortify  the 
truth  of  the  confession.^  An  indictment  charged  the  defendant 
with  knowingly  receiving  in  pledge  from  a  soldier  certain  property 
of  the  United  States,  to-wit :  a  Colt  automatic  pistol.  There 
was  evidence  that  the  pistol  was  found  in  the  defendant's  store 
near  a  government  reservation ;  that  the  pistol  was  government 
property  and  had  been  issued  to  a  named  soldier  and  that  the 
defendant  confessed  extrajudicially  to  receiving  it  in  pledge  from 
a  soldier.  The  accused  contended  that  the  corpiis  delicti  had  not 
been  established  by  evidence  independent  of  his  extrajudicial  con- 
fession. It  was  held  that  although  some  of  the  facts  were  merely 
circumstantial,  they  tended  to  corroborate  the  accused's  confession, 
and  the  evidence  was  such  as  to  warrant  the  jury  in  inferring  that 
the  accused  knew  the  person  he  received  the  pistol  from  was  a 
soldier,  and  also  that  the  pistol  was  government  property.^ 

§  332.   Subsequent  Confessions.  , 

Subsequent  confessions,  after  having  confessed  under  influence 
of  hope  or  fear,  cannot  be  admitted.^  A  person  having  once  been 
induced,  by  improper  influences,  to  make  a  confession,  no  other 
confessions  of  a  like  character,  though  made  at  a  subsequent  time 
and  to  different  persons,  are  admissible,  even  when  voluntarily 
made,  unless  it  be  shown  that  the  prior  improper  influence  has 
been  removed,  either  by  an  explicit  and  distinct  warning,  or  some 
other  equally  cogent  means. ^  A  confession  of  arson  freely  and 
voluntarily  made  before  the  mayor  of  a  city  was  received,  though 
previous  threats  and  inducements  had  been  made  by  visitors  to 
the  prisoner  and  inspectors  of  the  prison,  when  he  made  no  con- 
fession.^ A  prisoner,  arrested  for  larceny,  confessed  to  the  officer 
as  to  that  larceny,  under  the  officer's  promise  to  do  what  he  could 
for  him  if  he  would  tell  where  the  stolen  goods  were.     He  after- 

» Daeche    v.    United    States,    250  §  332.   >  United   States   v.    Negro 

Fed.  566,  571,  162  C.  C.  A.  582  (2d  Charles,  2  Cr.  C.  C.  76,  Fed.  Cas. 

Cir.) ;    United  States  v.  Williams,  1  No.  14,786. 
Cliff.  5,  Fed.  Cas.  No.  16,707.  ^  United    States  v.   Cooper,  Fed. 

♦  BoUand    v.    United   States,    238  Cas.  No.  14,864. 
Fed.    529,    151    C.    C.   A.  465   (4th  ^  Commonwealth  v.  Dillon,  4  Dall. 

Cir.).  116. 
276 


Chap.  XXXII]         CONFESSIONS    OF   THIRD    PARTIES  [§  334 

wards  made  a  confession  of  a  different  larceny  before  a  magistrate 
without  any  new  promise  or  threat  or  question.  The  first  confes- 
sion was  not  receivable  against  him,  but  the  second  was  admitted.'* 

§  333.   Confessions  Made  under  Oath. 

There  is  a  conflict  of  opinion  as  to  whether  a  confession  made 
under  oath  is  admissible.'  A  confession  given  voluntarily  on 
examination  before  a  magistrate  has  been  held  admissible.-  It 
has  been  held  that  a  confession  of  an  accused  prisoner,  taken  on 
oath,  cannot  be  used  against  him.^  On  the  other  hand,  confessions 
made  under  oath  have  been  held  admissible.'*  The  testimony 
of  the  accused  voluntarily  given  at  a  preliminary  hearing  before  a 
magistrate  may  be  introduced  as  evidence  at  the  trial. ^  The  fact 
that  the  confession  is  made  under  oath  will  not  be  effectual  to 
exclude  it,  power  to  administer  the  oath  being  conferred  by  Revised 
Statute  §  183.®  Evidence  given  on  oath  before  grand  jury  without 
compulsion  has  been  used  on  witness's  subsequent  indictment.^ 
A  sworn  statement  made  long  anterior  to  any  prosecution  was 
admitted.^  Voluntary  statements  to  a  magistrate  who  conducted 
a  preliminary  examination  made  before  and  after  the  exami- 
nation, have  been  admitted.^ 

§  334.   Confessions  of  Third  Parties. 

The  rule  in  the  Federal  Courts  is  that  confessions  of  third 
parties  made  out  of  court  and  tending  to  exonerate  the  accused, 
are  not  admissible  in  evidence  in  favor  of  the  accused.^     Justice 

*  United   States   t'.    Kurtz,    4   Cr.  *  United  States  v.  Graff,  14  Blatchf. 

C.  C.  682,  Fed.  Cas.  No.  15,547.  381,  387,  Fed.  Gas.  No.  15,244. 

§333.    1  Wilson  I'.  United  States,  'United   States   v.    Ivimball,    117 

162  U.  S.  613,  40  L.  ed.  1090,  16  S.  Fed.  150. 
G.  895.  8  United  States  v.  Brown,  40  Fed. 

2  Fries    Case,    Wharton's   St.  Tr.  457. 

482,  595.  '  Hardy    v.    United    States,    180 

3  United  States  v.  Bascadore,  2  U.  S.  224,  46  L.  ed.  1137,  22  S.  C. 
Cr.  C.  G.  30,  Fed.  Gas.  No.  14,536 ;      889. 

United  States  i'.  Duffy,  1  Cr.  G.  G.  §  334.   ^  DonneUy        v.        United 

164,  Fed.  Gas.  No.  14,998.  States,  228  U.  S.  243,  278,  57  L.  ed. 

"  Burrell  v.   Montana,    194  U.  S.  820,  33  S.  G.  449.     But  see  the  dis- 

572,  48  L.  ed.  1122,  24  S.  G.  787.  senting  opinion   of   Justice   Holmes, 

^  Powers  V.  United  Sjtates,  223  U.  with  whom  concur  Justices   Lurton 

S.  303,  56  L.  ed.  448,  32  S.  G.  281.  and  Hughes. 

277 


§  334]  EVIDENCE  [Chap.  XXXII 

Holmes  says :  ^  "  There  is  no  decision  by  this  court  against  the 
admissibihty  of  such  a  confession ;  the  EngHsh  cases  since  the 
separation  of  the  two  countries  do  not  bind  us ;  the  exception  to 
the  hearsay  rule  in  the  case  of  declarations  against  interest  is 
well  known  ;  no  other  statement  is  so  much  against  interest  as  a 
confession  of  murder,  it  is  far  more  calculated  to  convince  than 
dying  declarations,  which  would  be  let  in  to  hang  a  man."  A 
confession  of  one  or  two  joint  defendants,  made  in  the  absence  of 
the  other,  was  held  inadmissible  against  the  other,^ 

§  335.   Matters  of  Procedure. 

The  fact  that  an  accused's  confession  was  not  objected  to  by 
him  when  offered  as  not  being  voluntary  warrants  disregard  of  an 
objection  on  appeal  on  that  ground.^  The  defendant  does  not,  by 
failing  to  cross-examine  as  to  the  voluntary  nature  of  the  alleged 
confession,  waive  the  right  to  further  question  the  character  of  the 
confession  by  motion  to  strike  it  out.-  If  requested  by  the 
defendant,  the  court  should  specially  instruct  the  jury  upon  the 
subject  of  the  necessity  that  the  confession  be  found  to  have  been 
voluntarily  made  before  it  could  be  considered  by  the  jury.^  If 
confessions  are  improperly  admitted  the  defendant  will  be  entitled 
to  a  new  trial.'* 

§  336.   Value  as  Evidence. 

The  courts  have  differed  as  to  the  value  of  confessions  as  evi- 
dence. On  one  hand  it  has  been  held  that  a  confession,  if  freely 
and  voluntarily  made,  is  evidence  of  the  most  satisfactory  char- 
acter.^ On  the  other  hand  it  has  been  said  that  evidence  by 
confessions,  especially  where  it  goes  to  the  whole  merits  of  the 
case,  is  certainly  open  to  much  objection.-     Confessions,  it  has 

*  Donnelly  v.  United  States,  supra.  *  United  States  v.  Stone,  8  Fed. 

'Sorensen  v.   United  States,    143  232,     262;      United    States    v.     De 

Fed.  820,  74  C.  C.  A.  468  (8th  Cir.) ;  Quilfeldt,  5  Fed.  276. 

Sparf  V.   United   States,    156   U.   S.  §  336.   i  Wilson  v.  United  States, 

51,  39  L.  ed.  343,  15  S.  C.  273.  162  U.  S.  613,  622,  40  L.  ed.  1090, 

§335.   'Shaw   v.    United    States,  16  S.  C.  895;    Hopt  v.  Utah,  110  U. 

180  Fed.  348,  355,  103,  C.  C.  A.  494  S.  574,  584,  28  L.  ed.  262,  4  S.  C.  202. 

(6th  Cir.).  2  Smith    v.    Burnham,    3    Sumn. 

2  Shaw  V.  United  States,  supra.  435,  Fed.  Cas.  No.  13,019. 

» Ibid. 

278 


Chap.  XXXII]  value  of  CONFESSION  [§  337 

been  said,  should  be  received  with  great  caution,  for  experience 
has  shown  that  they  often  mislead,  and  sometimes  convict  an 
innocent  person.  Under  a  charge  of  a  highly  criminal  offense 
the  mind  must  always  be  agitated,  and  may  be  influenced  by 
hopes  or  apprehensions  which  it  is  difficult,  if  not  impossible, 
sometimes  to  comprehend.^  Again,  it  has  been  said  that  oral  ad- 
missions or  statements  claimed  to  have  been  made  by  a  defendant 
should  always  be  viewed  with  caution.  The  imperfection  of  the 
medium  through  which  such  admissions  are  transmitted  should 
be  considered.  The  infirmities  of  memory  and  desire  to  detect  an 
offender  are  subjects  which  it  is  proper  to  keep  in  view  in  weigh- 
ing this  character  of  testimony.'*  Where  a  defendant  was  under 
arrest  for  24  hours  without  having  the  privilege  of  communicat- 
ing with  his  friends  or  counsel,  having  been  taken  in  charge  by 
five  post  office  inspectors  and  compelled  to  occupy  the  same  room 
with  one  of  the  inspectors,  a  written  confession  obtained  under 
such  circumstances  was  held  to  be  not  voluntary  and  not  admis- 
sible in  evidence.^ 

§337.  Insanity  as  a  Defense  —  Drunkenness  —  Delirium 
Tremens. 

Insanity,  to  be  available  as  a  defense,  must  reach  the  degree  of 
failure  to  understand  the  difference  between  right  and  WTong. 
Drunkenness  is  not  an  excuse  for  crime;  the  long  continued 
use  of  alcohol  or  other  drugs,  even  though  voluntary,  may  produce 
delirium  tremens  or  other  mental  derangement  violent  enough  to 
amount  to  insanity,  and  make  its  victim  not  responsible  under 
the  law.  Intoxication,  or  delirium,  from  a  drug  used  with  knowl- 
edge that  it  is  likely  to  produce  intoxication  or  delirium  obviously 
stands  on  the  same  footing  as  intoxication  from  alcohol.  A 
patient  is  not  presumed  to  know  that  a  physician's  prescription 
may  produce  a  dangerous  frenzy.  But  he  is  bound  to  take  notice 
of  the  warning  appearing  on  a  prescription,  and  this  obligation  is, 

'  United  States  v.  Nott,  1  McLean,  also  Sorenson  v.  United  States,  143 

499,  501,  Fed.  Cas.  No.  15,900.  Fed.   820-824,   74  C.   C.  A.  4G8  ;  3 

*  United  States  v.   McKenzie,   35  Russel  on  Crimes,  (6  ed.)  478 ;  Bram 

Fed.  826,  829.  v.  United  States,  168  U.  S.  532,  42  L. 

»  Purpura  v.   United   States,   262  ed.  568,  18  S.  C.  183. 
Fed.   473  (C.  C.  A.  4th  Cir.).     See 

279 


§  337]  EVIDENCE  [Chap.  XXXII 

of  course,  stronger  if  he  reads  the  prescription.  If,  for  example, 
the  prescription  itself,  or  the  realized  effect  of  the  first  dose  of 
the  chloral,  or  both  together,  warned  the  defendant  before  he 
had  lost  control  of  himself  that  he  might  be  thrown  into  an 
uncontrollable  frenzy,  then  he  would  be  guilty  of  murder  or 
manslaughter  according  to  the  view  the  jury  might  take  of  the 
circumstances.  If,  on  the  other  hand,  the  defendant  had  good 
reason  to  infer  from  the  terms  of  the  prescription  or  the  oral 
instructions  of  the  physician,  or  from  the  effect  of  the  first  dose, 
or  from  all  these  together,  that  he  would  fall  into  unconsciousness 
from  a  larger  dose,  then  he  would  not  be  legally  responsible  for 
acts  committed  in  a  violent  frenzy  which  he  had  no  reason  to 
anticipate.  If  he  was  so  frenzied  by  a  portion  of  the  medicine 
innocently  taken  under  the  direction  of  a  physician  that  he  was 
thrown  into  a  mental  state  which  placed  him  beyond  his  own 
control  and  beyond  the  realization  of  what  might  be  the  ill  effect 
of  an  overdose,  he  would  not  be  legally  responsible.^  Whether 
the  insanity  be  general  or  partial,  whether  continuous  or  periodical, 
the  degree  of  it  must  have  been  sufficiently  great  to  have  controlled 
the  will  of  the  accused  at  the  time  of  the  commission  of  the  act. 
Where  reason  ceases  to  have  dominion  over  the  mind,  proven  to 
be  diseased,  the  person  reaches  a  degree  of  insanity  where  criminal 
responsibility  ceases,  and  accountability  to  the  law  for  the  purpose 
of  punishment  no  longer  exists.^ 

§  338.   Insanity,  Burden  of  Proof. 

Ordinarily  every  person  charged  with  crime  is  presumed  to  be 
sane.^  Where  the  defendant  pleads  insanity  as  a  defense  in  a 
criminal  action  and  evidence  is  introduced  tending  to  support 
that  defense,  the  burden  of  proving  his  sanity  beyond  a  reasonable 
doubt  is  on  the  prosecution  and  not  on  the  defendant,  and  the 

§  337.  1  Perkins  t;.  United  States,  Fed.  Cas.  No.  14,993 ;  1  Hale,  P.  C. 
228  Fed.  408,  142  C.  C.  A.  638  (4th  32;  3  Greenleaf,  Ev.  §  6;  United 
Cir.) ;    Tucker  v.  United  States,  151       States  v.  King,  34  Fed.  302 ;    United 


U.  S.  164,  38  L.  ed.  112,  14  S.  C.  299 
Davis  V.  United  States,  160  U.  S 
469,  40  L.  ed.  499,  16  S.  C.  353 
Davis  V.  United  States,  165  U.  S 
373,  41  L.  ed.  750,  17  S.  C.  360 
United  States  v.  Drew,  5  Mason,  28, 
280 


States  V.  Faulkner,  35  Fed.  730. 

^  United  States  v.  Chisholm,  153 
Fed.  808,  810. 

§  338.  >  United  States  v.  Chis- 
holm, 153  Fed.  808. 


Chap.  XXXII]  RES  GEST^  [§  339 

jury  is  not  bound  by  the  legal  presumption  of  his  sanity.-  A 
charge  imposing  upon  the  defendant  the  burden  of  proving  by  a 
preponderance  of  the  evidence  that  when  he  committed  the 
offense,  if  he  did  so  at  all,  he  was  of  unsound  mind  was  held  erro- 
neous.^ If  it  appears  in  a  murder  case,  that,  if  upon  the  whole 
evidence,  by  whomsoever  adduced,  the  jury  have  a  reasonable 
doubt  whether,  at  the  time  of  the  killing,  the  accused  was  mentally 
competent  to  distinguish  between  right  and  wrong,  or  to  under- 
stand the  nature  of  the  act  he  was  committing,  they  cannot  prop- 
erly return  a  verdict  of  guilty.'*  The  opinions  of  witnesses  as  to 
the  sanity  of  a  human  being  are  admissible  evidence,  and  a  lay- 
man, as  well  as  a  physician,  is  competent  to  give  one,  although  the 
jury  will  judge  as  to  the  value  and  weight  of  such  opinions,  con- 
sidering them  with  reference  to  the  experience  and  capacity  of 
those  who  give  them.^ 

RES   GESTiE 

§  339.   General  Principles. 

The  res  gestw  are  the  undesigned  incidents  of  the  act  in  issue, 
which  are  always  admissible  in  evidence  when  illustrative  of  the 
act.  They  may  be  separated  from  the  act  by  a  lapse  of  time  more 
or  less  appreciable.  They  may  consist  of  speeches  of  any  one 
concerned,  whether  participant  or  bystander ;  they  may  comprise 
things  left  undone  as  well  as  things  done.  Their  sole  distinguish- 
ing feature  is  that  they  should  be  the  necessary  incidents  of  the 
act  in  issue,  and  not  produced  by  the  calculating  policy  of  the 
actors.  They  must  stand  in  immediate  causal  relation  to  the  act  — 
a  relation  not  broken  by  the  interposition  of  voluntary  individual 
wariness  seeking  to  manufacture  evidence  for  itself.  Incidents 
that  are  thus  immediately  and  unconsciously  associated  with  an 
act,  whether  such  incidents  are  doings  or  declarations,  become 

*  Davis  V.  United  States,   160  U.  '  German   v.    United    States,    120 

S.  469,  40  L.  ed.  499,  16  S.  C.  353 ;  Fed.   666,   57   C.    C.    A.    128    (6th 

Hotema  v.  United  States,  186  U.  S.  Cir.). 

413,  418,  46  L.  ed.  1225,  22  S.  C.  895.  «  Davis  v.  United  States,  160  U. 

See  also  Matheson  v.  United  States,  S.  469,  40  L.  ed.  499,  16  S.  C.  353. 
227  U.  S.  540,  57  L.  ed.  631,  33  S.  '  United   States   v.    German,    115 

C.  355 ;    United  States  v.  Lancaster,  Fed.    987.     See    also    this    Chapter, 

7  Biss.  440,  Fed.  Cas.  No. '15,555.  §  395  expert  atstd  opinion  evidence. 

281 


§  339]  EVIDENCE  [Chap.  XXXII 

in  this  way  evidence  of  the  character  of  the  act.^  The  rules  as 
to  what  constitutes  res  gestw  and  to  admissibihty  generally,  are 
the  same  in  criminal  as  in  civil  cases.  The  question  of  what  con- 
stitutes res  gestoB  depends  greatly  on  the  circumstances  of  the 
case,  particularly  with  regard  to  the  question  of  time,  and  a  cer- 
tain degree  of  discretion  rests  with  the  trial  court  in  the  admission 
of  acts  and  declarations  as  part  of  the  res  gestae?  Their  admissi- 
bility is  determined  by  the  judge  according  to  the  degree  of  their 
relation  to  the  principal  fact  and  in  the  exercise  of  his  sound 
judgment,  it  being  extremely  difhcult,  if  not  impossible,  to  bring 
this  class  of  cases  within  the  limits  of  a  more  particular  descrip- 
tion.^ The  rijle  is  that  circumstances,  acts  and  declarations  which 
are  so  interwoven  or  connected  with  a  transaction  which  is  the 
subject  of  judicial  inquiry  as  to  be  necessary  to  a  just  under- 
standing of  it,  should  be  received  in  evidence;  but  they  should 
appear  to  be  its  undesigned  accompaniments,  free  from  any  cal- 
culating purpose  of  those  concerned.  In  other  words,  they  should 
fit  and  have  an  immediate  and  natural  relation  to  the  principal 
fact.^  The  tendency  of  modern  adjudications  is  to  extend,  rather 
than  to  narrow,  the  rule  as  to  the  admission  of  declarations  as 
part  of  the  res  gestae,  and  to  admit  and  leave  their  weight  to  the 
jury.  The  fact  that  the  defendant  is  now  allowed  to  testify  has 
greatly  tended  to  liberalize  the  rule.^  Declarations  accompanying 
and  explaining  the  res  gestae  may  undoubtedly  be  proved.     But 

§  339.   1  St.  Clair  v.  United  States,  ^  Chicago,  Milwaukee  &  St.  Paul 

154  U.  S.  134,   149,  38  L.  ed.  936,  Ry.   Co.   v.   Chamberlain,  253   Fed. 

14  S.  C.  1002,  quoting  Wharton  on  429,  —  C.  C.  A.  —  (9th  Cir.),  quoting 

Evidence,   §  259,  quoted  in  Sprinkle  1  Greenl.   (12th  Ed.   H  108)  and  St. 

V.  United  States,  141  Fed.  811,  816,  Clair  v.  United  States,  supra. 

73  C.  C.  A.  285  (4th  Cir.),  and  Jones  ^  Huntington    v.     United    States, 

V.  United  States,  179  Fed.  584,  602,  175  Fed.  950,  99  C.  C.  A.  440  (8th 

103  C.  C.  A.  142  (9th  Cir.) ;  Blanton  Cir.) ;    .Etna  Life  Ins.  Co.  v.  Ryan, 

V.  United  States,  213  Fed.  320,  325,  255  Fed.  483,  485,  —  C.  C.  A.  — 

130  C.  C.  A.  22  (8th  Cir.) ;  Chicago,  (2d  Cir.). 

Milwaukee  &  St.   Paul  Ry.   Co.  v.  ^  Jack  v.   Mutual   Reserve   Fund 

Chamberlain,  253  Fed.  429,  —  C.  C.  Life  Ass'n,    113   Fed.  49,  56,  51  C. 

A.  —  (9th  Cir.).  C.    A.    36    (5th    Cir.) ;     Travelers' 

2  Alexander  v.  United  States,  138  Insurance   Co.    v.    Mosley,    8   Wall. 

U.  S.  353,  34  L.  ed.  954,  11  S.  C.  350 ;  (U.  S.)  397,  19  L.  ed.  437  ;   Sprinkle 

Moore  i'.   United  States,    150  U.  S.  v.   United  States,    141   Fed.  811,  73 

57,  60,  37  L.  ed.  996,  14  S.  C.  26.  C.  C.  A.  285  (4th  Cir.). 
282 


Chap.  XXXII]  TIME  [§  340 

such  declarations  are  not  admissible  as  part  of  the  res  gestce 
unless  they  in  some  way  elucidate  or  tend  to  characterize  the  act 
which  they  accompany,  or  may  derive  a  degree  of  credit  from  the 
fact  itself."  Acts  and  declarations  not  so  connected  with  the 
crime  as  to  form  part  of  the  res  gestae  or  to  have  any  legitimate 
tendency  to  justify,  excuse  or  mitigate  it  are  not  admissible  for 
the  defendant.'^ 

§340.  Time. 

The  jury  must  give  no  weight  to  a  declaration  of  the  accused 
which  has  been  admitted  in  evidence,  unless  they  are  satisfied 
that  it  was  made  at  a  time  when  it  was  forced  out  as  the  utterance 
of  a  truth  by  the  particular  event  itself,  and  at  a  period  of  time  so 
closely  connected  with  the  transaction  that  there  has  been  no 
opportunity  for  subsequent  reflection  or  determination  as  to  what 
it  might  or  might  not  be  wise  for  him  to  say.^  In  proceedings  for 
conspiracy  to  conceal  assets,  evidence  of  acts  of  concealment  by 
the  bankrupt  before  the  bankruptcy,  as  well  as  those  subsequent 
thereto,  are  admissible  as  part  of  the  res  gestoBr  In  larceny  cases 
declarations  of  the  defendant  at  the  time  of  receiving  the  property 
will  be  admitted  to  rebut  the  presumption  arising  from  its  posses- 
sion.^ In  a  larceny  case  it  was  held  that  anything  said  and  done 
by  the  accused  and  the  prosecuting  witness  at  the  time  of  the 
larceny  was  directly  connected  with  the  transaction  and  not  in 
any  sense  collateral  to  the  issue.  The  evidence  was  intended  to 
impeach  the  prosecuting  witness  and  to  explain  the  motives  and 
intent  of  the  accused ;  and  ought  to  have  been  submitted  to  the 
jury,  who  were  the  proper  judges  of  its  credit  and  weight."*  In  a 
prosecution  for  rape  on  a  girl  under  the  age  of  consent,  a  statement 
of  the  prosecution  made  to  a  confidential  friend  shortly  after  leav- 
ing the  place  of  the  alleged  act,  not  as  a  complaint,  nor  as  an  ex- 
pression of  outraged  feeling,  nor  under  excitement  produced  by 
an  external  shock,  but  purely  as  a  matter  of  interesting  information 

«  United  States  v.  Angell,  11  Fed.  «  United    States   v.    Rhodes,    212 

34,  41.  Fed.  513,  516. 

^  Andersen  v.  United  States,   170  '  Rex  v.  Abraham,  2  Car.  &  K. 

U.  S.  481,  42  L.  ed.  1116,  18  S.  C.  689.  550,  3  Cox  C.  C.  430. 

§  340.    1  United    States    v.    King,  *  Turner  v.  United  States,  2  Hayw. 

34  Fed.  302,  314.  "  &  H.  343,  Fed.  Cas.  No.  14262  a. 

283 


§  340]  EVIDENCE  [Chap.  XXXII 

in  a  casual  conversation  was  held  inadmissible.^  The  declarations 
of  the  prisoner  in  the  room  where  counterfeited  notes  were  found 
were  held  admissible  to  repel  any  unfavorable  conclusion  from 
silence  on  his  part.''  Although  a  defendant  charged  with  embezzle- 
ment, who  relied  upon  the  defense  of  insanity,  admitted  the  taking 
of  the  money,  it  was  competent  for  the  Government  to  prove  all 
the  facts  in  its  possession  relative  to  the  taking,  and  the  defendant's 
conduct  before  and  after,  both  as  a  basis  for  a  hypothetical  ques- 
tion to  medical  experts  and  for  the  consideration  of  the  jury  on 
the  question  of  sanity  vel  non? 

§  341.  Feelings,  Demeanor,  Business  Relations  and  Circum- 
stances. 

Wherever  the  bodily  or  mental  feelings  of  an  accused  are  material 
to  be  proved,  the  usual  expressions  of  such  feelings  are  original 
and  competent  evidence.  They  are  regarded  as  verbal  acts,  and 
are  as  competent  as  any  other  testimony,  when  relevant  to  the 
issue.  Their  truth  or  falsity  is  for  the  jury.  So,  on  a  trial  for 
homicide  on  shipboard,  where  the  defense  was  insanity  caused  by 
excessive  drinking,  and  an  overdose  of  chloral,  the  testimony 
of  a  physician  as  to  the  description  the  accused  gave  of  his  symp- 
toms just  before  going  on  the  ship  was  held  competent  on  the 
issue  of  his  mental  and  physical  condition  at  that  time.^  A 
person's  demeanor  when  arrested  or  suddenly  charged  with  crime 
has  always  been  held  competent  evidence  as  bearing  on  the 
question  of  the  defendant's  consciousness  of  guilt.  With  a 
proper  explanation  of  all  the  circumstances,  it  may  be  safely  left 
to  the  jury.  The  same  is  true  as  to  a  defendant's  demeanor  in 
the  court  room  while  undergoing  a  trial  for  crime.  His  demeanor, 
standing  alone,  and  unexplained,  might  be  a  wholly  untrust- 
worthy source  of  information ;  but  when  taken  in  connection  with 
all  the  circumstances  developed  upon  such  a  trial,  it  affords  a 
valuable  element  in  passing  upon  the  question  of  guilt  or  innocence.^ 

5  Callahau  v.  United  States,  240  §  341.   ^  Perkins  v.  United  States, 

Fed.  G83,  153  C.  C.  A.  481  (9th  Cir.).  228  Fed.  408,  420,  142  C.  C.  A.  638 

«  United  States  v.  Crai^,  4  Wash.  (4th  Cir.). 
C.  C.  729,  Fed.  Cas.  No.  14883.  ^  Waller    v.    United    States,    179 

'  United  States  v.  Chisholm,  153  Fed.  810,  812,  103  C.  C.  A.  302  (8th 

Fed.  808,  813.  Cir.). 
284 


Chap.  XXXII]  DEFENDANT'S   CONDITION  [§  341 

Circumstances  showing  the  situation  and  relations  of  one  accused 
of  passing  counterfeit  bills  with  persons  in  whose  possession 
similar  bills  had  been  found  and  his  facilities  for  the  commission 
of  the  offense  have  been  held  admissible  for  or  against  the  defendant 
as  part  of  the  res  gestce,  in  the  same  way  as  proof  of  the  defendant's 
business,  his  tools,  his  knowledge,  or  his  training.'  Evidence  as 
to  the  defendant's  knowledge  of  and  expertness  in  'financial 
schemes,  and  as  to  previous  attacks  made  on  the  honesty  of  the 
scheme  (to  obtain  subscription  to  bonds  offering  large  profits) 
was  held  material  as  bearing  on  the  question  whether  the  defendant 
was  himself  deceived  respecting  it.'*  In  a  prosecution  for  using 
the  mails  to  defraud  it  was  held  that  the  defendant  might  show 
circumstances  in  the  course  of  the  business  tending  to  prove  its 
real  nature  as  carried  on,  so  far  as  such  circumstances  are  fairly 
contemporaneous  with  the  proof  offered  to  establish  fraudulent 
device  and  execution,  these  being  part  of  the  res  gestce.^  The 
builder  of  a  vessel  on  which  a  crime  was  alleged  to  have  taken  place 
was  properly  permitted  to  testify  as  to  its  general  character  and 
situation.®  Where  the  evidence  against  an  accused  was  purely 
circumstantial,  it  was  held  proper  for  the  Government  to  establish, 
as  a  circumstance  in  the  case,  the  fact  that  another  person  who  was 
present  in  the  vicinity  at  the  time  of  the  killing,  could  not  have 
committed  the  offense.''  A  post  office  clerk  charged  with  stealing 
from  the  mails,  who  denied  doing  acts  testified  to  by  witnesses 
which  were  consistent  only  with  guilt,  should  have  been  allowed 
to  prove  that  immediately  preceding  the  time  in  question  it  had 
been  a  common  practice  in  that  post  office  for  mail  to  come  in  bad 
condition  and  with  ends  and  edges  so  broken  or  worn  out  that  solid 
substances  might  readily  fall  from  them,  as  such  fact  would  be  a 
circumstance  tending  to  prove  his  theory.  Its  value  as  evidence 
was  for  the  jury.^ 

3  United  States    v.    Taranto,    74      U.  S.  481,  42  L.  ed.  1116,  18  S.  C. 

Fed.  219.  689. 

*  United  States    v.    Durland,    65           ''  Bram  v.  United  States,  168  U. 
Fed.  408.  S.  532,  568,  42  L.  ed.  568,  18  S.  C. 

^Hibbard  v.   United  States,    172  183. 
Fed.  66,  70,  96  C.  C.  A.  554  (7th  » Chitwood  v.  United  States,  153 

Cir.).  •  Fed.    551,    82    C.    C.    A.    505    (8th 

*  Andersen  v.  United  States,  170  Cir.). 

285 


§  342]  EVIDENCE  [Chap.  XXXII 

§  342.   Letters  and  Other  Documents. 

Letters  in  answer  to  a  circular  letter  to  district  managers  of  a 
company  written  three  years  before  an  indictment  was  found, 
stating  that  the  policy  outlined  in  the  circular  had  been  pursued  in 
their  districts,  are  properly  admitted  in  evidence  as  part  of  the  res 
gestcB}  Letters  coming  to  the  attention  of  the  defendants  before 
the  time  of  the  alleged  offense  reasonably  capable  of  creating 
faith  in  the  bona  fides  of  the  product  traded  in  are  admissible  on  the 
question  whether  the  representations  charged  were  made  in  good 
faith.-  Papers  inclosed  in  the  same  envelope  with  the  writing 
set  forth  in  the  indictment  as  put  into  the  mail  are  competent 
evidence  as  part  of  the  res  gestce?  In  a  prosecution  for  altering  a 
money  order,  the  application  on  wdiich  it  was  issued  is  admissible 
as  part  of  the  res  gestoe}  A  letter  written  by  a  defendant  in  a 
prosecution  for  misusing  the  mails  before  he  knew  prosecution 
was  contemplated,  tending  to  show  his  good  faith,  was  held  ad- 
missible as  res  gestce}  Proof  of  a  conversation  directly  bearing 
upon  a  claimed  agreement  is  not  hearsay,  but  the  best  evidence 
of  the  arrangement.^  In  a  conspiracy  case  correspondence  of  the 
defendant  of  a  self  serving  character  is  not  competent.'^ 

§  343.    Statements  of  Third  Person. 

Statements  of  third  persons  are  admissible  where  they  are  so 
closely  connected  with  the  crime  as  to  be  illustrative  of  the  act  in 
issue  and  so  part  of  the  res  gestcs}  On  the  separate  trial  of  one 
indicted  jointly  with  others  for  murder,  though  not  charged  as 
co-conspirators,  the  acts,  appearance  and  declarations  of  either, 

§  342.   1  Patterson       v.       United  Fed.  568,  575,  158  C.  C.  A.  538  (5th 

States,  222  Fed.  599,  649,  138  C.  C.  A.  Cir.) . 

123   (6th  Cir.) ;    Hibbard  v.  United  ^  Gould  v.  United  States,  209  Fed. 

States,  172  Fed.  66,  96  C.  C.  A.  554  730,  737,  126  C.  C.  A.  454  (8th  Cir.) 

(7th  Cir.) ;  Harrison  d.  United  States,  (reviewing  the  authorities). 
200  Fed.  662,  674,  119  C.  C.  A.  78  •=  Sparks    v.    United    States,    241 

(6th  Cir.) ;    Gould  v.  United  States,  Fed.  777,  154  C.  C.  A.  479  (6th  Cir.). 
209  Fed.  730,  126  C.  C.  A.  454  (Sth  ^  Holsnum  v.  United  States,   248 

Cir.).     .  Fed.  193,  160  C.  C.  A.  271  (9th  Cir.). 

2  Hair  V.  United  States,  240  Fed.  §  343.    '  Alexander       v.       United 

333,  336,  153  C.  C.  A.  259  (7th  Cir.).  States,  138  U.  S.  353,  34  L.  ed.  954, 

"United  States  v.  Noelkc,  1  Fed.  11   S.   C.   350;     Barnard  v.   United 

426,  436.  States,  162  Fed.  618,  89  C.  C.  A.  376 

*  Dean     v.     United    States,     246  (9th  Cir.). 
28G 


Chap.  XXXII]  CIRCUMSTANTIAL    EVIDENCE  [§  344 

if  part  of  the  res  gestce,  are  admissible,  for  the  purpose  of  presenting 
the  situation  at  the  time  of  the  alleged  murder.^  When  two  or 
more  persons  are  associated  together  for  the  same  illegal  purpose, 
any  act  or  declaration  of  one  of  the  parties,  in  reference  to  the 
common  object,  and  forming  a  part  of  the  res  gestce,  may  be  given 
in  evidence  against  the  other.^  While  the  act  of  one  conspirator 
in  the  prosecution  of  the  enterprise  is,  after  proof  of  the  con- 
spiracy, evidence  against  all,  his  admissions  in  his  narration  of 
past  events  after  the  conspiracy  has  come  to  an  end,  either  by 
success  or  failure,  are  inadmissible  in  evidence  against  his  co- 
conspirators.* 

CIRCUMSTANTIAL   EVIDENCE 

§  344.   Definition. 

"  Indirect  "  or  "  circumstantial  "  evidence  is  that  which  tends 
to  establish  the  issue  only  by  proof  of  facts  sustaining  by  their 
consistency  the  hypothesis  claimed  and  from  which  the  jury 
may  infer  the  fact.  Direct  and  circumstantial  evidence  differ 
merely  in  their  logical  relations  to  the  fact  in  issue.  Evidence 
as  to  the  existence  of  the  fact  is  direct.  Circumstantial  evidence 
is  composed  of  facts  which  raise  a  logical  inference  as  to  the  exist- 
ence of  the  fact  in  issue.^  Circumstantial  evidence,  strictly 
speaking,  consists  of  a  number  of  disconnected  and  independent 
facts,  which  converge  towards  the  fact  in  issue  as  a  common  center. 
These  concurrent  and  coincident  facts  are  arranged  in  combination 
by  a  mental  process  of  reasoning  and  inference,  enlightened  by 
common  observation,  experience,  and  knowledge.  Where  pre- 
sumptions arise  from  a  number  of  connected  and  dependent  facts, 
every  fact  essential  to  the  series  must  be  proved.  Such  evidence 
is  like  a  chain,  in  which  no  link  must  be  missing  or  broken  which 

^  St.   Clair  t;.  United  States,  154  U.  Logan  v.   United  States,    144  U.  S. 

S.  134,  38  L.  ed.  936,  14  S.  C.  1002.  2G3,  309,  36  L.  ed.  429,  12  S.  C.  617; 

'  Wiborg    V.    United    States,    1C3  Brown  v.   United  States,    150  U.  S. 

U.  S.  632,  41  L.  ed.  289,  16  S.  C.  1127,  93,  98,  37  L.  ed.  1010,  14  S.  C.  37; 

1197;    Fitzpatrick  v.  United  States,  Lonabaugh  r.  United  States,  179  Fed. 

178  U.  S.  304,  44  L.  ed.  1078,  20  S.  476,  481,  103  C.  C.  A.  56,  61  (8th 

C.  944.  Cir.). 

*  Fain  v.  United  States,  209  Fed.  §  344.   ^  United  States  v.  Greene, 

525,   126  C.  C.  A.  347  <8th  Cir.) ;  146  Fed.  803,  824. 

287 


§  344]  EVIDENCE  [Chap.  XXXII 

destroys  its  continuity.  Circumstantial  evidence  is,  like  a  wire 
cable,  composed  of  many  small  associated  but  independent  wires. 
Wire  cables  are  often  used  to  sustain  ponderous  bridges  over  rivers. 
The  strength  of  the  cable  depends  upon  the  number  of  wires  which 
are  combined,  but  some  of  the  wires  may  be  broken,  and  yet  the 
cable  be  sufficiently  strong  to  uphold  the  structure.  As  no 
chain  is  stronger  than  its  weakest  link,  a  chain  is  less  reliable  when 
it  has  a  great  number  of  links,  but  a  wire  cable  is  strengthened  by 
an  increase  in  the  number  of  its  wires.  This  combination  of 
attenuated  wires  may  be  stronger  than  a  solid  rod  of  iron  of  the 
same  size  which  may  have  flaws  affecting  its  strength.  When 
circumstantial  evidence  consists  of  a  number  of  independent  cir- 
cumstances, coming  from  several  witnesses  and  different  sources, 
each  of  which  is  consistent  and  tends  to  the  same  conclusion,  the 
probability  of  the  truth  of  the  fact  in  issue  is  increased  in  proportion 
to  the  number  of  such  circumstances.^ 

§  345.   Reception. 

A  wide  latitude  is  allowed  in  the  reception  of  circumstantial 
evidence.^  But  the  recognized  rule  of  evidence  in  the  investigation 
of  criminal  cases  dependent  upon  circumstantial  evidence  that  a 
wide  range  of  inquiry  may  be  indulged  in  does  not  imply  that 
mere  suspicion  is  the  equivalent  of  proof,  or  that  mere  hearsay 
testimony  may  be  resorted  to,  or  that  unrelated  incompetent 
incidents  and  circumstances  may  become  admissible  because  of 
their  number,^  though  circumstances  altogether  inconclusive,  if 
separately  considered,  may,  by  their  number  and  joint  operation, 
especially  when  corroborated  by  moral  coincidences,  be  sufficient 
to  constitute  conclusive  proof.^  Where  a  proposition  is  sought  to 
be  established  by  circumstantial  evidence,  the  individual  cir- 
cumstances standing  independently  are  immaterial  and  must 
necessarily  be  admitted  piecemeal  and,  if  the  necessary  connection 

2  United  States  v.  Searcey,  26  Fed.  States,  151  U.  S.  303,  38  L.  ed.  170, 

435,  437.  14  S.  C.  334. 

§  345.   >  Richards  v.  United  States,  ^  Sorenson  v.  United  States,   168 

175  Fed.  911,  926,  99  C.  C.  A.  401  Fed.  785,  94  C.  C.  A.  181  (8th  Cu-.). 
(8th   Cir.) ;    see  also   United   States  '  United  States  v.  Isla  de  Cuba, 

V.   Gibert,   2   Sumn.    19,    Fed.   Cas.  2  Cliff.  295,  Fed.  Cas.  No.  15447. 
No.   15204,   and  Hickory  v.  United 
288 


Chap.  XXXII]  WEIGHT  [§  348 

which  will  make  them  material  fails,  then  they  have  no  value  and 
under  proper  instructions  will  do  no  harm.'* 

§  346.   Identity. 

Concordance  in  name  alone  is  always  some  evidence  of  identity 
of  person ;  and  oddness  of  name,  size  of  the  district  where  the 
name  exists,  length  of  time,  sameness  in  age,  nationality,  birth- 
place, sex,  occupation,  marks  and  similarity  in  features  have  been 
recognized  in  the  various  cases  as  circumstantial  evidence  of  more 
or  less  weight  tending  to  establish  identity  of  person.^ 

§  347.   Corpus  Delicti. 

The  corpus  delicti  may  be  established  by  circumstantial  evi- 
dence.^ Where  there  is  no  positive  proof  of  the  corpus  delicti, 
but  merely  circumstantial  evidence,  the  question  of  the  accused's 
guilt  may  be  submitted  to  the  jury  with  the  instruction  that  the 
circumstantial  evidence  must  be  such  as  to  satisfy  the  jury  beyond 
a  reasonable  doubt  that  the  corpus  delicti  has  been  established.^ 

§  348.   Weight. 

Circumstantial  evidence  only  warrants  a  conviction  provided 
it  is  such  as  to  exclude  every  reasonable  hypothesis  but  that  of 
guilt  of  the  offense,  or,  in  other  words,  the  facts  proved  must  all 
be  consistent  with  and  point  to  his  guilt  only,  and  inconsistent  with 
his  innocence.^  Wlienever  circumstantial  evidence  is  relied  upon 
to  prove  guilt,  the  circumstances  must  be  proved,  and  not  them- 
selves presumed.-  Note  the  qualification  of  "  reasonable  doubt  of 
the  existence  of  each  fact  necessary  to  be  proved  "  as  too  emphatic 
as  tending  to  destroy  the  rationale  of  circumstantial  evidence.^ 

■»  Mclnerney  v.  United  States,  143  States,  154  U.  S.  134,  38  L.  ed.  986, 

Fed.  729,  739,  74  C.  C.  A.  655  (1st  14  S.  C.  1002. 

Cir.) ;  United  States  v.  Isla  de  Cuba,  "^  Perovich  v.   United  States,   205 

2  Cliff.  295,  Fed.  Cas.  No.  15447.  U.  S.  86,  51  L.  ed.  722,  27   S.   C. 

>  §  346.    1  Mclnerney      v.      United  456. 

States,  143  Fed.  729,  739,  74  C.  C.  A.  §  348.   >  ^'ernon  v.  United  States, 

655  (1st  Cir.).  146  Fed.  121,  123,  76  C.  C.  A.  547 

§347.   1  Perovich        v.        United  (8th  Cir.). 
States,  205  U.  S.  86,  51  L.  ed.  722,  2  Vernon    v.    United    States,    146 

27  S.  C.  456 ;  Isaacs  v.  United  States,  Fed.  121,  76  C.  C.  A.  547  (8th  Cir.). 
159  U.  S.  487,  40  L.  ed.  229,  16  S.  '  Richards  v.   United  States,    175 

C.    51 ;     United    States   v.    Searcey,  Fed.  911,  927,  99  C.  C.  A.  401  (8th 

26   Fed.   435;    St.   Clair  D.   United  Cir.). 

VOL.  1—19  289 


§  349]  EVIDENCE  [Chap.  XXXII 

§  349.   Decoy  Letters. 

It  is  not  permissible  to  use  decoy  letters  for  the  purpose  of  creat- 
ing an  offense,  but  they  may  be  used  in  order  to  detect  the  criminal.^ 
In  Woo  Wai  v.  United  States,-  it  was  distinctly  adjudged  that  it  is 
against  public  policy  to  sustain  a  conviction  for  crime  where  the 
party  or  parties  are  induced  to  commit  it  by  officers  of  the  Govern- 
ment who  thereafter  ensnare  and  apprehend  them  in  such  com- 
mission. There  is  something  repugnant  in  the  idea  of  the  Govern- 
r^nt  by  art  and  contrivance,  entrapping  one  of  its  citizens  into 
the  commission  of  crime  in  order  to  subject  him  to  criminal  prose- 
cution, and  such  prosecutions  have  been  felt  by  the  Courts  to  be 
more  or  less  objectionable  in  morals  and  in  policy.^  But  decoy 
letters  are  permissible  to  trace  the  authorship  or  the  identity  of 
the  sender  of  obscene  matter  through  the  mail  and  are  admissible 
in  evidence  upon  proper  proof,  and  the  sender  thereof  may  be 
punished  for  using  the  mails  for  such  purpose  even  though  the 
obscene  matter  was  sent  in  response  to  a  decoy  letter  of  a  post 
office  inspector.^  In  such  a  case  the  court  said :  "  The  law  was 
actually  violated  by  the  defendant ;  he  placed  letters  in  the  post 
office  which  conveyed  information  as  to  where  obscene  matter 
could  be  obtained,  and  he  placed  them  there  with  a  view  of  giving 
such  information  to  the  person  who  should  actually  receive  those 
letters,  no  matter  what  his  name;  and  the  fact  that  the  person 
who  wrote  under  these  assumed  names  and  received  his  letters, 
was  a  government  detective,  in  no  manner  detracts  from  his 
guilt."  ^  A  decoy  is  not  a  confederate,  therefore  his  acts  are 
not  imputable  to  the  accused  as  principal.^ 

§  349.   1  United  States  v.   Healy,  S.  311,  41  L.  ed.  727,  17  S.  C.  366; 

202    Fed.    349;     United    States    v.  Shepard  v.  United  States,   160  Fed. 

Whitticr,  5  Dill.  35,  Fed.  Cas.  No.  584,   87   C.   C.   A.   486    (8th   Cir.) ; 

16688;     Goode    v.    United    States,  Ackley  v.   United  States,   200   Fed. 

159  U.  S.  663,  40  L.  ed.   297,  16  S.  217,   118  C.  C.  A.  403   (8th  Cir.) ; 

C.  136.  Grimm  v.  United  States,  156  U.  S. 

2  223  Fed.  412,  137  C.  C.  A.  604  G04,  39  L.  ed.  550,  15  S.  C.  470 ; 
(9th  Cir.).  Andrews   v.    United   States,    162   U. 

3  United  States  v.  Jones,  80  Fed.  S.  420,  41  L.  ed.  1023,  16  S.  C. 
513;    United  States  v.  Echols,  253  798. 

Fed.  862 ;  Sam  Yick  v.  United  States,  ^  Rosen    v.    United    States,     161 

240  Fed.  GO,  153  C.  C.  A.  96  (9th  U.  S.  29,  40  L.  ed.  606,  16  S.  C.  434. 

Cir.).  « Sprinkle   v.    United   States,    141 

4  Price  V.  United  States,   165  U.  Fed.  811,  73  C.  C.  A.  285  (4th  Cir.). 

290 


Chap.  XXXII]  ALIBI  —  BURDEN   OF    PROOF  [§350 

§  350.   Alibi  —  Burden  of  Proof. 

The  doctrine  has  been  adopted  in  some  jurisdictions  that  a  plea 
of  alibi  is  an  extrinsic  defense  and  must  be  proved  by  the  defendant 
by  a  preponderance  of  evidence.  On  the  other  hand,  many  cases 
lay  down  the  rule  that  a  plea  of  alibi  is  not  an  affirmative  defense, 
requiring  the  defendant  to  establish  it,  but  that  time  and  place 
are  essential  ingredients  of  the  crime,  to  be  proved  by  the  prose- 
cution beyond  a  reasonable  doubt.  The  latter  appears  to  be  the 
doctrine  of  the  federal  courts.  It  may  be  noted  here  that  even 
in  those  jurisdictions  where  the  burden  of  proof  of  alibi  is  held  to 
be  on  the  defendant,  he  is  not  required  to  prove  the  defense  by  a 
preponderance  of  evidence.  The  burden  of  proof  that  the  defend- 
ant was  present  at  the  time  and  place  alleged  is  on  the  prosecution, 
and  never  shifts.  It  was  therefore  held  error  to  charge  that  the 
defense  of  alibi,  to  be  entitled  to  consideration,  must  be  such  as 
to  show  that  at  the  ver}^  time  of  commission  of  the  offense  charged 
the  accused  was  at  another  place  so  far  away  and  under  such 
circumstances  that  he  could  not  have  participated  in  the  com- 
mission of  the  offense,  and  that  the  burden  of  proof  that  the 
defendant  was  at  another  place  must  be  sustained  by  a  preponder- 
ance of  the  evidence.  This  instruction  was  not  cured  by  a  further 
instruction  that  if  the  jury  had  any  reasonable  doubt  as  to  whether 
the  defendant  was  at  some  other  place  when  the  crime  was  com- 
mitted, they  should  give  the  defendant  the  benefit  of  that  doubt.^ 
It  was  held  that  an  instruction  that  an  alibi  is  a  proper  defense, 
but  that  it  is  more  easy  to  build  up  and  somewhat  more  difficult 
to  controvert  than  some  other  defenses,  was  not  erroneous. ^ 
The  Government  called  a  witness  in  rebuttal,  who  was  examined 
as  to  the  presence  of  the  defendant  at  a  particular  place  at  a 
particular  time  to  rebut  testimony  which  had  been  offered  by  the 
defendant  to  prove  the  alibi  on  which  he  relied.  This  testimony 
was  objected  to  on  the  ground  that  the  proof  was  not  proper  re- 
buttal. It  was  held  that  it  was  rebuttal  testimony.^  The  defense 
in  its  attempt  to  make  out  an  alibi  introduced  testimony  tending 

§  350.   1  Glover  v.  United  States,  Fed.   832,   142   C.   C.   A.   356    (8th 

147  Fed.  426,  77  C.  C.  A.  450  (8th  Cir.). 
Cir.).                                      .  5  Goldsby  v.  United  States,  160  U. 

2  Fielder    v.    United    States,    227  S.  70,  74,  40  L.  ed.  343,  16  S.  C.  216. 

291 


§  350]  EVIDENCE  [Chap.  XXXII 

to  show  that  the  defendant  at  a  given  time  was  many  miles  from 
the  place  of  the  murder,  and  that  by  the  public  road  he  could  not 
have  had  time  to  reach  this  point  and  have  been  present  at 
the  killing.  In  order  to  prove  that  he  could  not  have  reached 
there  by  any  other  more  direct  route  than  the  public  road,  one 
of  his  witnesses  had  testified  that  the  country  was  covered 
with  wire  fences.  It  was  held  competent  to  show  in  rebuttal 
of  this  statement  that  the  accused  was  in  possession  of  a  wire 
cutter,  by  which  the  jury  could  deduce  that  it  was  possible  for 
him  to  travel  across  the  country  by  cutting  the  fences.  Of 
course  the  weight  to  be  attached  to  the  proof  was  a  matter 
for  the  jury.  The  Court's  charge  in  substance  instructed  the 
jury  to  consider  all  the  evidence  and  all  the  circumstances  of 
the  case,  and  if  a  reasonable  doubt  existed  to  acquit.  It  was 
held  that  if  the  accused  wished  specific  charges  as  to  the  weight 
in  law  to  be  attached  to  testimony  introduced  to  establish  an 
alibi,  it  was  his  privilege  to  request  the  court  to  give  them.  If 
no  such  request  is  made  he  cannot  complain  of  the  charge  as 
misleading  and  tending  to  cause  the  jury  to  disregard  the 
testimony.'* 

§  351.  Traces  of  Guilt,  Etc. 

A  bank  book  showing  deposits  in  excess  of  the  defendant's 
salary  from  the  Government  was  held  not  admissible  against  him 
under  an  indictment  for  extortion,  where  there  was  no  necessary 
connection  between  the  deposits  and  the  specific  charges  against 
the  accused.^  In  determining  nationality,  it  has  been  held  that 
marked  and  obvious  characteristics,  such  as  color,  mode  of  dress- 
ing the  hair,  language  and  garb,  are  admissible ;  ^  but  the  value 
of  such  evidence  in  establishing  nationality,  or  natural  descent, 
has  been  doubted.^  The  post  office  stamp  on  an  envelope  is 
prima  facie  proof  that  the  letter  was  mailed.*  Evidence  of  the 
likeness  of  a  child  to  its  supposed  father  has  been  held  not  ad- 

^Goldsby   i^.    United   States,    160  ^  United  States  v.  Hung  Chang,  134 

U.  S.  70,  76,  40  L.  ed.  343,.  16  S.  C.  Fed.  19,  20,  67  C.  C.  A.  93  (6th  Cir.). 

216.  '  United  States  v.  Louis  Lee,  184 

§  351.   »  WiUiams  v.  United  States,  Fed.  651. 

168  U.  S.  382,  396,  42  L.  ed.  509,  *  United  States  v.  Noelke,  1  Fed. 

18  S.  C.  92.  426. 
292 


Chap.  XXXII]  flight  of  ACCUSED  [§  352 

missible  in  proceedings  against  him  (under  a  state  statute)  for 
not  supporting  it.^ 

§  352.   Flight  of  Accused  —  Raises  No  Presumption  of  Guilt. 

The  flight  of  the  accused  is  competent  evidence  against  him  as 
having  a  tendency  to  establish  his  guilt. ^  So  it  has  been  held  that 
the  flight  of  the  accused  under  an  assumed  name,  coincident  with 
the  theft  of  letters  traced  to  his  possession  unexplained,  tends 
strongly  to  show  guilt.^  But,  in  Hickory  v.  United  States,^  it 
was  held  that  while  acts  of  concealment  and  flight  by  an  accused 
are  competent  evidence  to  go  to  the  jury  as  tending  to  establish 
guilt,  yet  they  are  not  to  be  considered  as  alone  conclusive;  or 
as  creating  a  legal  presumption  of  guilt;  that  they  are  mere  cir- 
cumstances to  be  considered  and  weighed,  in  connection  with  other 
proof,  with  that  caution  and  circumspection  which  their  incon- 
clusiveness,  when  standing  alone,  requires.*  Hickory  v.  United 
States  was  followed  in  Alberty  v.  United  States,^  where  it  was  said 
that  it  is  especially  misleading  to  charge  the  jury  that,  from  the 
fact  of  absconding,  they  might  infer  the  fact  of  guilt,  and  that 
flight  is  a  silent  admission  by  the  defendant  that  he  is  unwilling 
or  unable  to  face  the  case  against  him.  It  is,  in  some  sense,- 
feeble  or  strong  as  the  case  may  be,  a  confession ;  and  it  comes  in 
with  the  other  incidents,  the  corpus  delicti  being  proved  from  which 
guilt  may  be  circumstantially  inferred.^  The  inference  that 
may  be  drawn  from  an  escape  after  arrest  is  strong  or  slight 
according  to  the  facts  surrounding  the  prisoner  at  the  time.^ 
The  fact  of  flight,  if  shown,  is  not  conclusive,  nor  does  it  raise  a 
legal  presumption  of  guilt,  but  is  to  be  given  the  weight  to  which 
the  jury  think  it  entitled,  under  the  circumstances  shown. ^  In 
this  connection  the  jury  may  take  into  consideration  the  defend- 

5  United  States  v.  Collins,   1  Cr.  United   States  f?  Greene,    146   Fed. 

C.  C.  592,  Fed.  Cas.  No.  14835.  803. 

§  352.   1  Allen  v.    United    States,  » i62  U.  S.  499,  510,   40  L.   ed. 

164  U.  S.  492,  499,  41  L.  ed.  528,  17  1051,  16  S.  C.  864. 
S.  C.  154.  « Starr  v.   United  States,    164  U. 

2  United    States    v.    Jackson,    29  S.  627,  41  L.  ed.  577,  17  S.  C.  223. 
Fed.  503.  ^  Bird  v.   United  States,    187  U. 

'  160  U.   S.  408,  416,  40  L.  ed.  S.  118,  47  L.  ed.  100,  23  S.  C.  42. 
474,  477,  16  S.  C.  327.  « United    States    v.    Greene,    146 

*  See    also    to    the    sajne    effect  Fed.  803. 

293 


§  352]  EVIDENCE  [Chap.  XXXII 

ant's  age,  intelligence  and  financial  ability  to  make  a  defense.^ 
In  an  early  case  a  prisoner,  arrested  for  alleged  larceny,  offered 
the  officer  a  watch  and  a  deed  of  his  house  if  he  would  suffer  him 
to  escape.  This  was  held  evidence  of  guilt.^°  A  "  fleeing  from 
justice  "  within  the  meaning  of  the  two  year  limitation  statute  of 
Congress,  of  April  30,  1790,  containing  a  proviso  that  it  shall  not 
extend  to  any  person  fleeing  from  justice,  was  held  to  mean  to 
leave  one's  home  or  residence  or  known  place  of  abode,  with  intent 
to  avoid  detection  or  punishment  for  some  public  offense  against 
the  United  States.  If  the  defendant  left  his  home  in  Kansas  and 
went  to  another  State  solely  to  avoid  the  criminal  justice  of  the 
State  of  Kansas,  and  not  to  avoid  the  cruninal  justice  of  the  United 
States  —  that  would  not  deprive  him  of  the  two-years  limitation. ^^ 
Under  the  general  issue  the  prosecutor  might  introduce  evidence 
to  bring  the  defendant  within  this  proviso.^^  If  the  government 
can  rebut  the  two  years  statute  of  limitations  by  showing  that 
the  defendant  fled  from  justice  at  any  time  during  the  two  years, 
the  defendant  apparently  may  rebut  this  by  evidence  that  he 
appeared  publicly  and  notoriously,  so  that  by  reasonable  diligence 
he  might  have  been  arrested  .^^ 

§  353.   Threats  of  Deceased. 

Previous  threats  of  the  deceased  that  he  would  kill  the  accused, 
communicated  to  the  accused,  where  there  were  similar  demon- 
strations immediately  prior  to  the  shooting,  are  admissible  for 
the  accused.^  On  a  trial  for  homicide  committed  in  an  encounter, 
where  the  question  as  to  which  of  the  parties  commenced  the  attack 
is  in  doubt,  it  is  competent  to  prove  threats  of  violence  against 
the  defendant  by  the  deceased,  though  not  brought  to  the  defend- 
ant's knowledge,  for  the  evidence,  though  not  relevant  to  show 
the  quo  animus  of  the  defendant,  would  be  relevant,  under  such 
circumstances,  to  show  that  at  the  time  of  the  meeting  the  deceased 

9  United  States  v.  Greene,  146  168,  21  L.  ed.  538;  United  States  r. 
Fed.  803.  Greene,  146  Fed.  803.' 

10  United  States  v.  Barlow,  1  Cr.  ^^  United  States  v.  White,  5  Cr. 
C.  C.  94,  Fed.  Gas.  No.  14521.                  C.  C.  38,  60,  Fed.  Gas.  No.  16675. 

"  United    States    v.    O'Brian,    3  §  353.   i  Wallace  v.  United  States, 

Dill.  D.  G.  381,  Fed.  Gas.  No.  15908.       162  U.  S.  466,  477,  40  L.  ed.  1039, 
"  United  States  v.  Gook,  17  Wall.       16  S.  G.  859. 

294 


Chap.  XXXII]  THREATS  [§  355 

was  seeking  the  defendant's  life.^  Threats  by  the  deceased,  recent 
and  communicated  to  the  accused,  were  held  admissible  in  evidence 
in  a  murder  case  as  relevant  to  the  question  whether  the  latter  had 
reasonable  cause  to  apprehend  an  attack,  fatal  to  life  or  fraught 
with  great  bodily  injury,  and  hence  was  justified  in  acting  on  a 
hostile  demonstration  and  one  of  much  less  pronounced  character 
than  if  such  threats  had  not  preceded  it.^ 

§  354.  Threats  of  Accused. 

In  all  cases  where  the  court  is  warranted  in  submitting  the  law 
on  facts  showing  that  a  difficulty  with  his  adversary  was  provoked 
on  the  part  of  the  accused,  if  there  is  evidence  tending  to  show  that 
the  accused,  after  provoking  his  adversary,  abandoned  his  purpose 
and  withdrew  from  prosecuting  the  same,  it  is  the  duty  of  the  court 
to  instruct  the  jury  as  to  the  effect  of  such  abandonment  of  pur- 
pose, called  for  by  such  evidence.  Refusal  to  do  so  when  requested 
is  reversible  error .^  Prior  conduct  of  one  accused  of  murder  to 
show  that  he  had  feelings  of  enmity  towards  the  deceased  was 
held  wrongly  admitted  because  the  time  of  the  incident  testified 
to,  more  than  a  month  before  the  homicide,  was  too  remote,  and 
because  the  incident  itself  did  not  tend  to  prove  any  feeling  of 
enmity  on  the  accused's  part  to  the  deceased,  such  as  to  warrant 
the  jury  in  inferring  that  the  subsequent  homicide  was  malicious 
and  premeditated.^ 

§  355.  Threats  of  Third  Person  as  Res  Gestae  in  Favor  of 
Defendant. 

It  being  shown  in  a  trial  on  an  indictment  for  murder,  that  on 
the  day  of  the  disappearance  of  the  murdered  man  and  the  de-r 
fendant's  wife,  the  defendant  her  husband  and  his  relatives  were 
seen  together  armed  with  pistols,  it  was  held  that  the  declarations 
of  the  defendant  at  that  time  as  to  his  purpose  were  part  of  the 

2  Wiggins  V.  People,  93  U.  S.  465,  600    (5th    Cir.) ;     Rowe    v.    United 

23  L.  ed.  941.  States,  164  U.  S.  546,  41  L.  ed.  547, 

'  Allison    t'.    United    States,    160  17  S.  C.  172. 
U.  S.  203,  215,  40  L.  ed.  395,  16  S.  2  Bird  v.   United   States,    180  U. 

C.  252.  S.  356,  360,  45  L.  ed.  570,  21  S.  C. 

§  354.   1  Stevenson       v.       United  403. 
States,  86  Fed.  106,  112,  29  C.  C.  A. 

295 


§  355]  EVIDENCE  [Chap.  XXXII 

res  gestae,^  but  the  Supreme  Court  of  the  United  States  refused 
to  pass  on  the  question  whether  it  was  error  to  rule  out  such 
declarations. 

EVIDENCE  OF  OTHER  OFFENSES 

§  356.  General  Rule. 

The  general  rule  is  that  evidence  tending  to  show  the  com- 
mission by  the  accused  of  another  independent  crime,  even  of  the 
same  kind  as  that  for  which  he  is  on  trial,  is  inadmissible.^ 
Evidence  that  at  the  time  of  the  alleged  offense  the  defendant  was 
engaged  in  committing  a  totally  different  offense,  is  inadmissible.^ 
It  is  easy  to  see  how  such  evidence  may  prejudice  the  jury  against 
the  defendant  —  may,  in  fact,  lead  to  his  conviction  of  the  offense 
with  which  he  stands  charged,  because  the  jury  may  believe 
that  he  is  at  least  guilty  of  the  other  offense.  Especially  in  a  case 
where  the  evidence  is  conflicting,  the  defendant  should  not  have 
the  burden  of  defending  against  a  separate  charge,  introduced 
in  evidence,  for  which  he  is  not  indicted,  and  which  has  no  tend- 
ency to  legally  prove  the  specific  charge  for  which  he  is  on  trial. 
In  brief,  the  law  does  not  allow  one  crime  to  be  proved  to  raise  a 
probability  that  another  has  been  committed.^  When  a  defendant 
takes  the  stand  he  assumes  a  dual  capacity ;  that  of  a  defendant 
and  that  of  a  witness.  As  a  witness  it  is  sometimes  competent  to 
interrogate  him  as  to  matters  collateral  to  the  issue  for  the  purpose 
of  testing  his  credibility,  but  when  that  is  done  the  government 
is  bound  by  his  answers  and  is  not  permitted  to  call  witnesses  in 
rebuttal  tending  to  show  that  the  defendant  was  guilty  of  crimes 
other  than  those  charged  in  the  indictment.^ 

§  355.   1  Alexander      v.       United  ^  Taliaferro  i'.  United  States,  213 

States,  138  U.  S.  353,  356,  34  L.  ed.  Fed.  25,  129  C.  C.  A.  611  (5th  Cir.). 

954,  11  S.  C.  350.  3  Taliaferro  v.  United  States,  213 

§356.   iRan    v.    United    States,  Fed.    25,    129    C.    C.    A.   611    (5th 

260  Fed.  131,  —  C.  C.  A.  —  (—  Cir.) ;  Cir.). 

Fish  V.  United  States,  215  Fed.  544,  ^  Ran  v.  United  States,  260  Fed. 

132  C.  C.  A.  56  (1st  Cir.) ;   Boyd  v.  131,  —  C.  C.  A.  —  (—  Cir.) ;  Citing, 

United  States,  142  U.  S.  454,  35  L.  ^People  v.  De  Carnio,  179  N.  Y.  130, 

ed.  1077,  12  S.  C.  292  ;  Hall  v.  United  71  N.  E.  736  ;   People  v.  Molineaux, 

States,  235  Fed.  869,  149  C.  C.  A.  168  N.  Y.  264,  61  N.  E.  286,  62  L. 

181  (9th  Cir.);  Dyarw.  United  States,  R.  A.  193;   People  v.  Greenwall,  108 

186  Fed.  614,  621,  108  C.  C.  A.  478  N.  Y.  296,  15  N.  E.  404,  2  Am.  St. 

(5th  Cir.).  Rep.  415. 

29G 


Chap.  XXXII]  MOTIVE  [§  358 

§  357.  Exceptions  To  Rule. 

There  are,  of  course,  many  instances  in  which  evidence  of  the 
commission  of  other  offenses  is  necessarily  admissible,  as  where  the 
commission  of  one  offense  is  a  circumstance  tending  to  show  the 
commission  of  the  oflfense  for  which  the  defendant  is  on  trial. 
The  fact  that  a  defendant  charged  with  homicide  stole  an  ax  or 
a  gun  with  which  the  killing  was  done,  the  stealing  of  the  weapon, 
though  a  distinct  offense,  would  necessarily  be  in  the  very  nature 
of  the  case  competent  evidence  against  him  on  his  trial  for  homi- 
cide.^ And  if  evidence  is  competent  and  relevant  as  tending  to 
establish  guilt  of  the  crime  charged,  it  is  not  incompetent  because 
it  may  also  tend  to  show  the  defendant  guilty  of  another  offense.^ 
None  of  these  exceptions,  when  rightly  applied,  go  to  the  extent 
of  sanctioning  the  idea  that  a  defendant's  propensity  to  commit 
crime,  or  to  commit  crimes  of  the  same  sort  as  that  charged,  can 
be  put  in  evidence  to  prove  him  guilty  of  the  particular  offense ; 
and  to  come  within  the  exceptions  there  must  be  some  other  real 
connection  between  the  extraneous  crime  and  the  crime  charged.^ 
The  transaction  must  always  be  similar  or  substantially  so.^ 
Hence  it  is  admissible,  to  show  the  intent  of  the  defendant  under 
an  indictment  for  uttering  a  raised  silver  certificate,  that  he  had 
previously  attempted  to  pass  a  similar  bill.^ 

§  358.   Motive. 

Where  the  intent  of  the  party  is  matter  in  issue,  it  is  sometimes 
in  the  sound  discretion  of  the  court  allowable  in  criminal  as  in 
civil  cases,  to  introduce  evidence  of  other  acts  and  doings  of  the 
party  of  a  kindred  character,  in  order  to  illustrate  or  establish 
his  intent  or  motive  in  the  particular  act  directly  in  judgment.^ 

§  357.   1  Dyar    v.    United    States,  544,  132  C.  C.  A.  56  (1st  Cir.) ;  Mar- 

186  Fed.  614,  621,  108  C.  C.  A.  478  shall  v.  United  States,  197  Fed.  511, 

(5th  Cir.).  117  C.  C.  A.  65  (2d  Cir.);    Hall  v. 

2  Tucker  v.  United  States,  224  United  States,  235  Fed.  869,  149 
Fed.  833,  840,  140  C.  C.  A.  279  (6th  C.  C.  A.  181  (9th  Cir.). 

Cir.) ;    Jones  v.   United  States,    179  *  Erber  v.  United  States,  234  Fed. 

Fed.  584,  103  C.  C.  A.  142  (9th  Cir.) ;  221,  228,  148  C.  C.  A.  123  (2d  Cir.). 

Moore  v.  United  States,   150  U.  S.  ^  Schultz    v.    United   States,    200 

57,  37  L.  ed.  996,  14  S.  C.  26 ;  Lueders  Fed.  234,  118  C.  C.  A.  420  (8th  Cir.). 

V.  United  States,  210  Fed.  419.  §  358.   i  Wolfson  v.  United  States, 

3  Fish  V.  United  States,  215  Fed.  101  Fed.  430,  41  C.  C.  A.  422  (5th 

297 


§358] 


EVIDENCE 


[Chap.  XXXII 


And  where  such  evidence  is  relevant  for  this  purpose,  and  has  a 
direct  bearing  on  intent  or  motive,  its  admissibility  is  not  affected 
by  the  fact  that  it  may  tend  to  prove  other  offenses.^  In  cases 
of  fraud  evidence  of  kindred  offenses  not  charged  may  be  admitted, 
if  tending  to  show  fraudulent  intent.^  It  is  particularly  applicable 
to  charges  of  conspiracy  to  defraud.^    The  court  should  most 


Cir.) ;  Sheridan  v.  United  States, 
236  Fed.  305,  313,  149  C.  C.  A.  257 
(9th  Cir.) ;  Wood  v.  United  States, 
16  Pet.  (U.  S.)  342,  10  L.  ed.  987; 
Breese  v.  United  States,  106  Fed. 
680,  45  C.  C.  A.  535  (4th  Cir.); 
Breese  v.  United  States,  203  Fed. 
824,  122  C.  C.  A.  142  (4th  Cir.); 
Brown  v.  United  States,  142  Fed. 
1,  73  C.  C.  A.  187  (7th  Cir.) ;  Pretty- 
man  V.  United  States,  180  Fed.  30, 
103  C.  C.  A.  384  (6th  Cir.) ;  Kinser 
V.  United  States,  231  Fed.  856,  860, 
146  C.  C.  A.  52  (8th  Cir.) ;  Withaup 
V.  United  States,  127  Fed.  530,  62 
C.  C.  A.  328  (8th  Cir.);  Olson  v. 
United  States,  133  Fed.  849,  67  C. 
C.  A.  21  (8th  Cir.);  Thomas  v. 
United  States,  156  Fed.  897,  17  L. 
R.  A.  (n.  s.)  720,  84  C.  C.  A.  477 
(8th  Cir.) ;  Schultz  v.  United  States, 
200  Fed.  234,  118  C.  C.  A.  420  (8th 
Cir.) ;  Linn  v.  United  States,  234 
Fed.  543,  148  C.  C.  A.  309  (7th  Cir.) ; 
Packer  v.  United  States,  106  Fed. 
906,  46  C.  C.  A.  35  (2d  Cir.) ;  Rmn- 
ble  V.  United  States,  143  Fed.  772, 
75  C.  C.  A.  30  (9th  Cir.);  Walsh 
V.  United  States,  174  Fed.  615,  98 
C.  C.  A.  465  (7th  Cir.) ;  Warden  v. 
United  States,  204  Fed.  1,  5,  122 
C.  C.  A.  315  (6th  Cir.) ;  Kettenbach 
V.  United  States,  202  Fed.  377,  120 
C.  C.  A.  505  .(9th  Cir.);  Jones  v. 
United  States,  162  Fed.  417,  89  C. 
C.  A.  303  (9th  Cir.),  Affirmed  179 
Fed.  584,  103  C.  C.  A.  142  (9th  Cir.) ; 
Chitwood  II.  United  States,  153 
Fed.  551,  82  C.  C.  A.  505  (8th  Cir.) ; 
Farmer  v.  United  States,  223  Fed. 
903,  139  C.  C.  A.  341  (2d  Cir.) ;  Stern 

298 


V.  United  States,  223  Fed.  762, 
139  C.  C.  A.  292  (2d  Cir.) ;  Samuels 
V.  United  States,  232  Fed.  536,  542, 
146  C.  C.  A.  494  (8th  Cir.) ;  Colt 
V.  United  States,  190  Fed.  305,  111 
C.  C.  A.  205  (8th  Cir.);  Trent  v. 
United  States,  228  Fed.  648,  650, 
143  C.  C.  A.  170  (8th  Cir.);  Day 
V.  United  States,  229  Fed.  534,  143 
C.  C.  A.  602  (4th  Cir.) ;  Ledbetter 
V.  United  States,  170  U.  S.  606,  42 
L.  ed.  1162,  18  S.  C.  774;  United 
States  V.  Khne,  201  Fed.  954,  959; 
United  States  v.  Kenney,  90  Fed. 
257;  United  States  v.  Watson,  35 
Fed.  358. 

2  Edwards  v.  United  States,  249 
Fed.  686,  690,  161  C.  C.  A.  596  (6th 
Cir.) ;  Shea  v.  United  States,  236 
Fed.  97,  102,  149  C.  C.  A.  307  (6th 
Cir.),  reviewing  the  cases;  Schultz 
V.  United  States,  200  Fed.  234,  118 
CCA.  420  (8th  Cir.). 

^  Breese  v.  United  States,  203 
Fed.  824,  829,  122  C  C  A.  142  (4th 
Cir.) ;  Wood  v.  United  States,  16 
Pet.  (U.  S.)  342,  360,  10  L.  ed.  987 ; 
Castle  V.  Bullard,  23  How.  (U.  S.)  172, 
187,  16  L.  ed.  424;  Butler  v.  Wat- 
kins,  13  Wall.  (U.  S.)  456,  464,  20 
L.  ed.  629 ;  Moore  v.  United  States, 
150  U.  S.  57,  61,  37  L.  ed.  996,  14 
S.  C  26;  Allis  v.  United  States, 
155  U.  S.  117,  119,  39  L.  ed.  91,  15 
S.  C  36 ;  Bacon  v.  United  States, 
97  Fed.  35,  42,  38  C  C  A.  37  (8th 
Cir.) ;  Dorsey  v.  United  States, 
101  Fed.  746,  756,  41  C  C  A.  652 
(8th  Cir.). 

♦  Shea  V.  United  States,  236  Fed.  97, 
102,  103,  149  C  C  A.  307  (6th  Cir.). 


Chap.  XXXII]  the  Marshall  case  [§  359 

carefully  guard  the  interest  of  the  defendant  against  any  possible 
misconception  by  the  jury  touching  the  effect  of  such  evidence. 
Such  evidence  must  have  some  relevancy  to  the  offense  charged,^ 
and  a  direct  bearing  on  the  intentJ 

§  359.  The  MarshaU  Case. 

On  the  trial  of  an  indictment  for  using  the  mails  to  defraud  in 
conducting  the  business  of  a  society  named  in  the  indictment  and 
alleged  to  be  a  fraudulent  organization,  the  United  States  Circuit 
Court  of  Appeals  for  the  Second  Circuit  held  that  it  was  error 
to  admit  testimony  showing  that  the  defendant  was  also  at  the 
same  time  conducting  another  society  of  precisely  the  same  kind 
by  identical  methods,  which  society  was  not  mentioned  in  the  in- 
dictment. The  court  said :  "  It  is  urged  that  the  testimony  was 
admissible  upon  the  question  of  intent;  but  it  is  difficult  to  perceive 
how  the  repetition  of  identical  facts  can  have  any  legitimate 
hearing  upon  this  question.  If  the  evidence  as  to  the  Standard 
Society  showed  a  fraudulent  intent,  the  Government's  case  in  that 
regard  was  established ;  nothing  more  was  needed.  If,  on  the 
other  hand,  it  failed  to  show  fraudulent  intent,  how  was  the  omis- 
sion supplied  by  duplicating  the  testimony  under  a  different 
name?  A  lawlFul  act  does  not  become  unlawful  because  it  is 
repeated.  If  an  act  be  shown  to  be  illegal,  it  is  enough.  The 
prosecutor  may  safely  rest  on  such  proof;  it  does  not  add  to  its 
illegal  character  to  show  that  it  was  repeated.  If  the  contention 
of  the  Government  be  correct,  the  acts  of  the  defendant  in  relation 
to  the  Banker's  Company  constitute  an  offense  under  section  5480 
and  he  had  a  right  to  rely  upon  the  rule  that  he  would  not  be  called 
upon  to  answer  accusations  not  found  in  the  indictment.  It  is 
impossible  to  say  how  much  of  this  evidence  may  have  prejudiced 

^  Williamson    v.     United     States,  Toothman  v.  United  States,  203  Fed. 

207  U.  S.  425,  52  L.  ed.  278,  28  S.  218,   121   C.  C.  A.  424   (4th  Cir.) ; 

C.  163  ;    Mitchell  v.   United  States,  Prettyman  v.  United  States,  180  Fed. 

229  Fed.  357,  361,  143  C.  C.  A.  477  30,   103    C.  C.    A.   384    (6th   Cir.)  ; 

(2d  Cir.) ;    Lueders  v.  United  States,  Scheinberg     v.    United    States,    213 

210  Fed.  419,  127  C.  C.  A.  151  (9th  Fed.  757,  130  C.  C.  A.  271  (2d  Cir.). 
Cir.) ;    Thompson  v.   United  States,  ^  Edwards  v.   United  States,   249 

144  Fed.  14,  19,  75  C.  C.  A.  172.  Fed.  686,  690,  161  C.  C.  A.  596  (6th 

« Lueders   v.    United   States,    210  Cir.);     Hall    v.    United   States,    235 

Fed.  419,  127  C.  C.  A.  151  (9th  Cir.) ;  Fed.  869,  149  C.  C.  A.  181. 

299 


§  359]  EVIDENCE  [Chap.  XXXII 

the  jury."  ^  The  reasoning  of  the  court  in  the  Marshall  case, 
supra,  was  materially  weakened  in  subsequent  cases.  Thus,  in 
another  case  ^  the  same  court  held  that  where  evidence  as  to  other 
offenses  is  closely  interwoven  with  the  case  on  trial,  it  is  ad- 
missible. It  also  held  that  the  Marshall  case  was  sui  generis,  and 
did  not  indicate  that  the  general  rule  as  to  evidence  showing 
intent  was  to  be  abrogated.^  Evidence  of  other  offenses  committed 
by  the  accused  having  no  connection  with  or  relation  to  that  for 
which  he  is  upon  trial  is  not,  of  course,  ordinarily  admissible. 
But,  when  the  offense  charged  is  one  that  involves  the  fraudulent 
intent  or  motive  of  the  accused,  it  is  permissible  in  criminal  as 
well  as  in  civil  cases  to  introduce  evidence  of  other  acts  and  trans- 
actions of  the  party  upon  trial  of  a  kindred  nature  to  show  his 
intent  or  motive  in  the  particular  act  directly  under  investigation, 
even  though  it  may  show  the  commission  of  other  offenses  than 
that  for  which  he  is  being  tried.  Indeed,  in  no  other  way,  in 
many  cases,  could  the  fraudulent  intent  or  motive  of  the  accused 
be  established,  for  the  single  act  under  investigation  might  not 
alone  be  decisive  either  way ;  but  when  that  act  is  considered  in 
connection  with  other  transactions  of  a  like  or  similar  character 
occurring  at  or  near  the  same  time,  which  also  involve  the  intent 
or  motive  of  the  party,  the  intent  and  motive  in  doing  the  act 
under  investigation  may  thus  be  made  to  appear  with  almost 
conclusive  certainty ."^ 

§  360.   Limit  to  Admissibility  of  Proof  of  Other  Offenses, 

The  similar  offense  sought  to  be  proved  must  raise  a  logical 
inference  that  the  accused  intended  to  commit  a  similar  offense. 

§  359.   1  Marshall        v.        United  425,  451,  52  L.  ed.  278,  28  S.  C.  163  ; 

States,  197  Fed.  511,  117  C.  C.  A.  Thomas  v.  United  States,   156  Fed. 

65  (2d  Cir.).  897,  911,  84  C.  C.  A.  477  (8th  Cir.), 

2  Parker    v.    United    States,    203  17  L.  R.  A.  (n.  s.)  720 ;    Bryan  v. 

Fed.  950,  952,  122  C.  C.  A.  252  (2d  United  States,    133   Fed.   495,   500, 

Cir.).  66  C.  C.  A.  369  (5th  Cir.);    Olson 

»  Farmer  v.  United  States,  223  Fed.  v.  United  States,  133  Fed.  849,  854, 

903,  911,  139  C.  C.  A.  341  (2d  Cir.).  67  C.  C.  A.  21  (8th  Cir.) ;  Common- 

*  Wood  V.  United  States,  16  Pet.  wealth   t;.    Jackson,    132    Mass.    16 ; 

(U.  S.)  342,  359,  10  L.  ed.  987  ;  Moore  People  v.  Harris,  136  N.  Y.  423,  33 

V.  United  States,  150  U.  S.  57,  60,  N.  E.  65,  74;   Colt  v.  United  States, 

61,  37  L.  ed.  996,  14  S.  C.  26;   Wil-  190  Fed.  305,  307,  111  C.  C.  A.  205 

liamson  v.  United  States,  207  U.  S.  (8th  Cir.). 
300 


Chap.  XXXII]  LIMIT   TO    ADMISSIBILITY  [§  360 

And  it  is  not  a  logical  inference  to  say  that  testimony  of  an  assault 
upon  a  child  nearly  three  years  previously  shows  that  the  defendant 
had  a  design  or  intent  to  make  an  assault  three  years  later  on  an- 
other child.  This  is  proof  of  a  collateral  matter,  tending  to  produce 
the  belief  that  the  defendant  is  a  person  of  depraved  moral  char- 
acter.^ Transactions  of  like  general  nature  occurring  at  about 
the  same  time  that  the  transactions  involved  in  the  case  on  trial 
occurred  have  been  admitted  to  disclose  intent.^  In  cases  in- 
volving fraud,  or  the  intent  with  which  an  accused  does  an  act, 
collateral  facts  and  circumstances,  and  his  other  acts  of  a  similar 
character,  both  prior  and  subsequent,  not  too  remote  in  time, 
are  admissible  in  evidence.^  No  limit  as  to  time  is  placed  upon 
the  power  of  the  court  to  admit  evidence  of  a  series  of  prior  similar 
transactions  committed  by  the  accused  in  the  ordinary  course  of 
his  business.  The  period  of  time  is  largely  within  the  discretion 
of  the  trial  court.'*  They  must  not,  however,  be  too  remote.^ 
That  such  evidence  also  had  a  bearing  upon  the  defense  of 
good  character  does  not  affect  its  admissibility.^  The  admission 
of  evidence  of  other  transactions  prior  to  the  period  of  limitation, 
which  has  a  bearing  on  what  occurred  subsequently,  has  been  held 
not  to  be  error  where  it  has  no  tendency  to  show  the  commission 
of  any  offense  prior  to  that  charged.'^  On  the  trial  of  an  indict- 
ment under  Section  300  of  the  Penal  Code,  for  setting  fire  to  a 
yacht  in  order  to  prejudice  the  underwriter  of  the  insurance 

§  360.    1  Hall    V.    United    States,  Walsh    v.    United    States,    174    Fed. 

235  Fed.  889,  871,  149  C.  C.  A.  181  615,  98  C.  C.  A.  461  (7th  Cir.) ;  Wil- 

(9th  Cir.).  lianison  v.  United  States,  207  U.  S. 

2  Hoss  V.  United  States,  232  Fed.  425,  52  L.  ed.  278,  28  S.  C.  163. 

328,  336,  146  C.  C.  A.  376  (8th  Cir.) ;  »  Bird  v.   United  States,    180  U. 

Bettman  v.  United  States,  224  Fed.  S.  356,  45  L.  ed.  570,  21  S.  C.  403. 

819,    830,    140    C.    C.   A.   265    (6th  « Huff  v.  United  States,  228  Fed. 

Cir.).  892,   143  C.  C.  A.  290   (5th  Cir.); 

^Moffatt    V.    United    States,    232  Van    Gesner  v.   United    States,    153 

Fed.  522,  533,  146  C.  C.  A.  480  (8th  Fed.  46,  82  C.  C.  A.  180  (9th  Cir.) ; 

Cir.) ;    Allis  v.  United  States,  155  U.  Sapir  v.  United  States,  174  Fed.  219, 

S.  117,  39  L.  ed.  91,  15  S.  C.  36.  98  C.  C.  A.  227   (2d  Cir.);    Stern 

*Schultz    V.    United    States,    200  v.  United  States,  223  Fed.  762,  139 

Fed.  234,  118  C.  C.  A.  420  (8th  Cir.) ;  C.  C.  A.  292  (2d  Cir.) ;    Farmer  v. 

Kettenbach   v.    United    States,    202  United  States,   223   Fed.   903,   911, 

Fed.  377,  384,  120  C.  C.  A.  505  (9th  139  C.  C.  A.  341  (2d  Cir.). 

Cir.) ;    Spurr  v.   United   States,   87  ''  United  States  v.  Hongendobler, 

Fed.  701,  31  C.  C.  A.  202  (6th  Cir.) ;  218  Fed.  187. 

301 


§  360]  EVIDENCE  [Chap.  XXXII 

policy,  it  was  held  to  be  reversible  error  to  admit  evidence  of 
other  fires  to  yachts  or  automobiles  previously  owned  by  the 
defendant,  on  which  he  collected  insurance,  where  the  testimony 
tended  to  show  that  the  fire  in  the  case  at  bar  was  accidental.^ 
It  is  reversible  error  to  compel  a  defendant  on  cross-examination 
to  testify  as  to  whether  his  partner  was  not  under  indictment  on 
the  same  charge.^ 

COMPETENCY     OF    WITNESSES 

§  361.   Conviction  of  Crime. 

The  disposition  of  courts  and  legislatures  to  remove  disabilities 
from  witnesses  has  led  to  the  admission  of  the  testimony  of  all 
persons  of  competent  understanding  who  may  seem  to  have 
knowledge  of  the  facts  involved  in  a  case.  Especially  as  applied 
to  the  competency  of  witnesses  convicted  of  crime,  the  former 
common  law  rule  disqualifying  such  witnesses  will  no  longer  be 
followed,  but  the  conviction  will  be  given  due  consideration  in 
determining  the  credibility  and  weight  of  their  testimony.^  Proof 
of  the  commission  of  a  crime  discredits  a  witness,  but  it  does  not 
absolutely  exclude  him  from  the  witness  stand.^  It  has  been 
held  that  a  person  convicted  of  forgery  in  the  State  court  while  a 
minor  and  sentenced  to  the  reformatory  for  indeterminate  sentence 
is  a  competent  witness.^  A  conviction  of  an  infamous  crime 
in  a  State  court  rendering  the  person  incompetent  to  testify  in  the 
State  court  does  not  render  him  incompetent  to  testify  in  the  Fed- 
eral courts,  any  more  than  it  would  in  the  courts  of  a  foreign  juris- 
diction, for  the  Federal  courts,  while  following  the  State  laws,  do 
not  give  effect  to  a  conviction  by  a  State  court.'*  In  any  case,  in 
the  absence  of  any  statute,  the  record  of  the  conviction,  or  an 
exemplified  copy  thereof,  must  be  produced  in  order  to  disqualify 

s  Fish  V.  United  States,  215  Fed.  Fed.  810,  151  C.  C.  A.  52  (2d  Cir.) ; 

544,  132  C.  C.  A.  56  (1st  Cir.).  Pakas   v.    United   States,    240   Fed. 

9  Tingle  V.  United  States,  87  Fed.  350,  153  C.  C.  A.  276  (2d  Cir.). 
320,  30  C.  C.  A.  666  (5th  Cir.).  '  Rosen    v.    United    States,    237 

§  361.   1  Rosen  v.   United  States,  Fed.  810,  151  C.  C.  A.  52  (2d  Cir.). 
245  U.  S.  407,  62  L.  ed.  406,  38  S.  ■*  Pakas    i;.     United    States,     240 

C.  148 ;   Baltimore  &  Ohio  R.  R.  Co.  Fed.  350,  3.55,  153  C.  C.  A.  276  (2d 

V.  Rambo,  59  Fed.  75,  8  C.  C.  A.  6  Cir.),     Following    Brown    v.    United 

(6th  Cir.).  States,  233  Fed.  353,  147  C.  C.  A. 

2  Rosen    v.    United    States,    237  289  (6th  Cir.). 
302 


Chap.  XXXII]  HUSBAND   AND   WIFE  [§  363 

a  witness  by  establishing  incompetency  by  reason  of  his  prior 
conviction  of  a  felony.^  The  effect  of  a  full  and  complete  pardon 
is  to  remove  penalties  and  disabilities  and  restore  the  witness 
to  his  full  rights.^  A  telegram  "  pardoning  a  witness  "  convicted 
of  felony  was  held  a  satisfactory  showing  of  pardon  so  as  to  enable 
the  witness  to  testify.^  A  pardon  to  an  individual  must  be 
proved.  A  general  proclamation  of  amnesty  will  be  judicially 
noticed.^ 

§  3G2.   Codefendants. 

Codefendants  who  have  pleaded  guilty  are  competent  to  testify 
for  the  Government  against  their  codefendants  in  the  indictment.^ 
When  two  persons  are  jointly  indicted  for  crime,  and  a  severance 
is  ordered,  one  of  the  accused,  whose  case  is  undisposed  of,  may  be 
called  and  examined  as  a  witness  on  behalf  of  the  Government 
against  his  codefendant.^ 

§  363.   Husband  and  Wife. 

At  common  law  a  wife  was  not  a  competent  witness  for  or  against 
her  husband  on  grounds  of  public  policy,^  and  under  the  common 
law  the  wife  of  one  of  several  defendants  on  trial  at  the  same  time 
could  not  be  called  as  a  witness  for  or  against  any  of  them.^  The 
interstate  transportation  of  a  married  woman  by  her  husband  in 
violation  of  Act  June  25,  1910,  c.  395,  is  such  a  personal  wrong  as 

5  Bise  V.  United  States,  144  Fed.  §  3S2.   i  Ryan   v.    United    States, 

374,  74  C.  C.  A.  1  (8th  Cir.) ;  Glover  216  Fed.   13,  39,   132  C.  C.  A.  257 

V.  United  States,   147  Fed.  426,  77  (7th  Cir.) ;    Benson  v.  United  States, 

C.    C.    A.    450    (8th    Cir.);     United  146  U.  S.  325,  329,  333,  36  L.  ed. 

States  V.  Woods,  4  Cr.   C.   C.  484,  991,  13  S.  C.  60. 

Fed.  Cas.  No.  16760 ;    United  States  ^  Benson    v.    United    States,    146 

V.  Biebusch,  1  Fed.  213.  U.  S.  325,  36  L.  ed.  991,  13  S.  C.  60. 

^  Thompson  v.  United  States,  202  Qucere :    Can  he  so  testify  when  no 

Fed.  401,  407,  120  C.  C.  A.  575  (9th  severance   has   been   ordered?    The 

Cir.) ;  Ex  parte  Garland,  4  Wall.  (U.  Ryan  Case,  supra,  seems  to  hold  so. 

S.)  333,  18  L.  ed.  366 ;  Boyd  v.  United  §  363.    i  United  States  v.  Gwynne, 

States,  142  U.  S.  450,  35  L.  ed.  1076,  209  Fed.  993. 

12S.C.  392;  Ex  parte  Wells,  18  How.  ^  Talbott    v.    United    States,    208 

(U.  S.)  307,  15  L.  ed.  421.  Fed.  144,  125  C.  C.  A.  360  (5th  Cir.) ; 

^  Pablo  V.  United  States,  242  Fed.  Bassett  v.  United  States,  137  U.  S. 

905,  155  C.  C.  A.  493  (9th  Cir.).  496,  34  L.  ed.  762,  11  S.  C.  165 ;  Reg 

8  United  States  v.  Wilson,  7  Pet.  v.  Thompson,  12  Cox,  Cr.  C.  202. 
(U.  S.)   150,  8  L.  ed.  640;    United 
States  V.  Hall,  53  Fed.  352. 

303 


§  363]  EVIDENCE  [Chap.  XXXII 

authorizes  the  wife  to  testify  against  her  husband.^  In  cases 
where  the  personal  rights  of  either  spouse  are  concerned  the 
exceptions  to  the  husband's  or  wife's  privilege  should  be  benevo- 
lently regarded,  ■  and  the  law  permits  the  husband  or  wife  to 
testify  in  protection  or  in  vindication  of  his  or  her  right  to  be 
secured  in  his  or  her  person  against  threat  or  assault  made  by  one 
against  the  other.^  The  question  in  such  case  appears  to  be 
whether  the  offense  is  not  merely  a  crime  "  against  the  marital 
relations  "  but  is  also  a  crime  "  against  the  wife."  '"  The  excep- 
tion to  the  common  law  rule  that  a  wife  is  not  a  competent  wit- 
ness for  or  against  her  husband,  does  not  include  an  injury  com- 
mitted upon  the  person  of  the  woman  prior  to  her  marriage.^  A 
bigamous  or  plural  wife  may  testify  against  the  bigamous  hus- 
band.^ This  rule  is  also  regulated  by  statute,  which  is  as  follows : 
"  That  in  any  proceeding  or  examination  before  a  grand  jury,  a 
judge,  justice,  or  a  United  States  commissioner,  or  a  court,  in  any 
prosecution  for  bigamy,  polygamy,  or  unlawful  cohabitation, 
under  any  statute  of  the  United  States,  the  lawful  husband  or 
wife  of  the  person  accused  shall  be  a  competent  witness,  and  may 
be  called,  but  shall  not  be  compelled  to  testify  in  such  proceeding, 
examination,  or  prosecution  without  the  consent  of  the  husband 
or  wife,  as  the  case  may  be ;  and  such  witness  shall  not  be  per- 
mitted to  testify  as  to  any  statement  or  communication  made  by 
either  husband  or  wife  to  each  other,  during  the  existence  of  the 
marriage  relation  deemed  confidential  at  common  law."  ^  Section 
2  of  the  same  Act  provides  :  "  That  in  any  prosecution  for  bigamy 
or  unlawful  cohabitation,  under  any  statute  of  the  United  States, 

'  United  States  v.  Bozeman,  236  *  United    States    v.    Rispoli,    189 

Fed.  432;    Pappas  v.  United  States,  Fed.  271. 

241  Fed.  665,  154  C.  C.  A.  423  (9th  ^  Denning  v.   United  States,   247 

Cir.) ;    Cohen  v.  United  States,  214  Fed.  463,  465,  159  C.  C.  A.  517  (5th 

Fed.  23,  130  C.  C.  A.  417  (9th  Cir.) ;  Cir.). 

Denning  v.  United  States,  247  Fed.  « United  States  v.   Gwynne,   209 

463,   159  C.   C.  A.   517   (5th  Cir.) ;  Fed.  993. 

UnitedStatesr.  RispoH,  189Fed.  271.  ^  Miles  v.  United  States,  103  U. 

But  see  Contra,   Johnson  v.   United  S.  304,  26  L.  ed.  481. 
States,  221  Fed.  250,  137  C.  C.  A.  106  «  Act   of   May   3,    1887,   c.   397; 

(8th  Cir.),  and  also  United  States  v.  §  1,  24  Stat.  L.  635. 
Gwynne,  209  Fed.  993,  where  the  of- 
fense was  committed  before  marriage. 
304 


Chap.  XXXII]      IMPEACHMENT   TESTIMONY    IN   GENERAL  [§  365 

whether  before  a  United  States  commissioner,  justice,  judge,  a 
grand  jury,  or  any  court,  an  attachment  for  any  witness  may  be 
issued  by  the  court,  judge  or  commissioner,  without  a  previous 
subpoena,  compeUing  the  immediate  attendance  of  such  witness, 
when  it  shall  appear  by  oath  or  affirmation,  to  the  commissioner, 
justice,  judge  or  court,  as  the  case  may  be,  that  there  is  reasonable 
ground  to  believe  that  such  witness  will  unlawfully  fail  to  obey  a 
subpoena  issued  and  served  in  the  usual  course  in  such  cases; 
and  in  such  case  the  usual  witness  fee  shall  be  paid  to  such  witness 
so  attached :  Provided,  that  the  person  so  attached  may  at  any 
time  secure  his  or  her  discharge  from  custody  by  executing  a 
recognizance  with  sufficient  surety,  conditioned  for  the  appear- 
ance of  such  person  at  the  proper  time,  as  a  witness  in  the  cause  or 
proceeding  wherein  the  attachment  may  be  issued."  ^  It  was 
recently  held  ^°  —  one  Judge  dissenting  —  that  in  a  criminal  prose- 
cution for  violating  the  liquor  laws  of  the  United  States,  the  hus- 
band was  not  a  competent  witness  on  behalf  of  the  wife.  The 
common  law  rule  is  that  neither  spouse  is  competent  to  testify 
for  or  against  the  other  .^^ 

§  364.  Religious  Belief,  Interest,  Etc. 

Any  religious  belief,  whatever  it  may  be,  which  recognizes  the 
usual  form  of  oath  administered,  recognizing  a  divine  punish- 
ment for  falsehood,  is  suflBcient  to  qualify,  but  a  witness  who  does 
not  believe  in  divine  punishment  for  a  false  oath  is,  .under  the 
common  law,  incompetent  to  testify.^  A  witness  whose  religious 
sentiments  are  objected  to  will  be  permitted  to  explain  them.^ 
Evidence  showing  interest  in  accused  by  a  witness  is  admitted.^ 

IMPEACHING    AND     SUSTAINING    WITNESSES 

§  365.   Impeachment  Testimony  In  General  —  Reward. 

The  rules  as  to  the  impeachment  and  sustaining  of  witnesses 
are  the  same  in  civil  and  criminal  cases.     It  is  competent  to  ask 

9  Act  of  May  3,  1887,  c.  397,  §  2,  §  364.   i  United  States  v.   MUler, 

24  Stat.  L.  635.  236  Fed.  798. 

1°  Adams   v.    United   States,  259  ^  United  States  v.  White,  5  Cr.  C. 

Fed.  214  (C.  C.  A.  8th  Cir.).  C.  38,  Fed.  Cas.  No.  16675. 

"  State    V.    Vaughan,     136  Mo.  ^  Murray    v.    United    States,    247 

App.  645,  118  S.  W.  118fi.  Fed.  874,  160  C.  C.  A.  96  (4th  Cir.). 

VOL.  1  —  20  305 


§  365]  EVIDENCE  [Chap.  XXXII 

a  witness  for  the  prosecution  whether  he  is  to  receive  a  reward  in 
case  the  defendant  should  be  convicted,  or  to  prove  that  fact  by 
any  competent  evidence.  But  it  is  not  competent  to  show  that 
he  has  made  a  statement  to  another  that  he  is  to  have  a  reward, 
when  he  himself  has  not  been  interrogated  as  to  what  he  said  to 
such  person,  unless  this  is  done  for  the  purpose  of  impeachment.^ 

§  366.  By  Former  Conviction. 

It  is  competent  for  the  purpose  of  discrediting  a  witness  to  show 
that  he  has  been  convicted  of  a  crime.  The  general  rule  is  that  the 
crime  must  rise  to  the  dignity  of  a  felony  or  petit  larceny.  What- 
ever may  be  the  limit  in  this  respect,  nothing  short  of  a  conviction 
of  a  crime  is  admissible  for  the  purpose  of  impeachment.  A  mere 
accusation  or  indictment  will  not  be  admitted,  for  the  reason  that 
innocent  men  are  often  arrested  charged  with  a  criminal  offense. 
The  proper  evidence  of  a  conviction  of  crime  is  the  record  thereof.^ 

§  367.  Bad  Character  of  Witness. 

Evidence  will  not  be  admitted  that  a  witness  is  a  common 
prostitute,  to  discredit  her  testimony.  The  question  must  be 
confined  to  her  general  reputation  for  veracity,  and  whether  from 
his  knowledge  of  that  general  reputation  the  impeaching  witness 
would  believe  her  on  oath.^ 

§  368.  By  Indictment. 

In  a  prosecution  for  one  crime,  evidence  that  the  accused  was 
indicted  for  another  distinct  offense  is  inadmissible  on  the  question 
of  his  credibility  as  a  witness.  It  is  not  uncommon  for  entirely 
innocent  persons  to  be  indicted,  and  this  raises  no  presumption  of 
guilt.^ 

§  369.   The  Impeaching  Question. 

In  United  States  v.  White,^  the  Court  said  that  the  only  question 
as  to  the  character  of  the  witness  proper  to  be  asked  is :    "  Are 

§  365.    1  Taylor  w.  United  States,  89  §  367.   i  United  States  v.  Masters, 

Fed.  954,  32  C.  C.  A.  449  (9th  Cir.).  4  Cr.  C.  C.  479,  Fed.  Cas.  No.  15739. 

§  366.   1  Baltimore  &  Ohio  R.  R.  §  368.    ^  Coyne  v.   United  States, 

Co.  V.  Rambo,  59  Fed.  75,  80,  8  C.  246  Fed.  120,  158  C.  C.  A.  346  (5th 

C.  A.  6  (6th  Cir.) ;   Glover  v.  United  Cir.). 

States,  147  Fed.  426,  429,  77  C.  C.  A.  §  369.   >  5  Cr.  C.  C.  38,  42,  Fed. 

450  (8th  Cir.).  Cas.  No.  16G75. 
306 


Chap.  XXXII]  COLLATERAL   ISSUES  [§  370 

you  acquainted  with  tlie  general  reputation  of  the  witness  as  to 
veracity,  and  from  your  knowledge  of  that  general  reputation 
would  you  believe  him  upon  his  oath  ?  "  And  it  refused  to  permit 
evidence  to  be  given  of  the  general  bad  character  of  the  witness. 
A  witness  may  be  impeached  by  evidence  of  inconsistent  state- 
ments.^ What  is  proper  impeaching  evidence  is  ordinarily  within 
the  sound  discretion  of  the  trial  judge,^  who  also  determines  the 
sufficiency  of  the  foundation  for  impeachment.^  Contradiction  of 
testimony  collateral  to  the  issue  on  trial,  introduced  for  im- 
peachment, is  not  ordinarily  permissible.^ 

§  370.   Collateral  Issues. 

So,  w^iere  the  prosecution  questions  the  defendant  as  to  a 
wholly  collateral  charge  against  him,  for  impeachment  purposes, 
it  is  bound  by  his  answer  that  the  case  had  been  quashed,^ 
Impeaching  witnesses  may  be  sustained  in  the  same  way  that 
their  impeachment  is  attempted.  Evidence  as  to  good  charac- 
ter is  excluded  until  the  character  has  been  brought  into  ques- 
tion.- Impeaching  testimony  must  have  reference  to  some  matter 
which  is  relevant  and  material  to  the  issue  on  trial  .^  A  witness 
in  a  criminal  case  cannot  be  impeached  as  to  a  collateral  matter 
and  as  to  what  he  said  in  reference  to  such  collateral  matter  to 
third  parties.^ 

^  Pappas    V.    United    States,    241  v.    United    States,    59    U.    S.    App. 

Fed.   665,    154   C.   C.    A.  423    (9th  633,  87  Fed.  701,  31  C.  C.  A.  202. 
Cir.).  '  Lueders   v.    United    States,    210 

3  Pablo  V.  United  States,  242  Fed.  Fed.  419,  424,  127  C.  C.  A.  151  (9th 

905,  155  C.  C.  A.  493  (9th  Cir.).  Cir.) ;    Filasto  v.  United  States,  211 

*The    Charles    Morgan,    115    U.  Fed.    329,    127    C.    C.    A.    578    (2d 

S.  69,  29  L.  ed.  316,  5  S.  C.  1172.  Cir.). 

5  BuUard    v.    United    States,    245  ^  Lankster  v.  State,  72  S.  W.  388 

Fed.  837,  158  C.  C.  A.  177  (4th  Cir.) ;  390;    State  v.  Sheppard,  49  W.  Va 

United  States  v.  White,  5  Cr.  C.  C.  582;    Welch  v.  State,  104  Ind.  347 

38,   Fed.   Cas.   No.    16675;    United  Garner  v.  State,  76  Miss.  515,  520 

States  V.  Holmes,   1   CUff.  98,  Fed.  Williams    v.    State,    73    Miss.    820 

Cas.  No.  15382.  Butler  v.  State,  34  Ark.  480 ;   Moore 

§  370.   1  Bullard  v.  United  States,  v.   People,    108  111.   484 ;    Common- 

245  Fed.  837,  158  C.  C.  A.  177  (4th  wealth  v.  Crittenden,  82  Ken.  164 ; 

Cir.).  Farris  i;.  People,   129  111.  521,  528; 

*  Woey  Ho  v.  United  States,  109  Ferguson  v.  United  States,  72  Nebr. 

Fed.  888,  48  C.  C.  A.^  705 ;    Spurr  350,  100  N.  W.  800. 

307 


§  371]  EVIDENCE  [Chap.  XXXII 

§  371.  Binding  Character  of  Evidence. 

Whoever  calls  the  witness,  even  the  defendant,  makes  him  his 
own  witness.^  So,  where  the  prosecutor  refused  to  call  a  witness, 
but  had  the  witness  in  Court  and  endorsed  on  the  indictment  and 
the  defendant  thereupon  called  him,  it  was  held  that  he  made 
him  his  own  witness.  The  court  said  :  "  Therefore  the  witness,  if 
called  by  the  prisoner,  must  be  considered  his  witness,  as  much  as 
those  subpoenaed  and  called  by  him."  ^  It  is  legitimate  upon 
cross-examination  to  interrogate  a  witness  for  the  defense  upon 
any  subject  regarding  which  he  has  been  examined  on  his  direct ; 
as  to  other  matters  the  District  Attorney  makes  him  his  own  wit- 
ness, and  should  not  be  permitted  to  impeach  him.^  In  Frye  v. 
Bank  of  Illinois,'*  the  court  said :  "  The  authorities  are  uniform 
that  it  is  only  the  general  reputation  of  a  witness  that  can  be 
inquired  into  for  the  purpose  of  impeaching  his  testimony;  and 
although  there  is  some  conflict  in  the  decisions  as  to  whether  the 
inquiry  should  be  confined  to  the  general  character  of  the  witness 
for  truth  and  veracity,  we  think  the  better  rule  is  that  it  should 
be  so  confined."  This  decision  has  been  followed  in  Dimick  v. 
Downs,^  and  the  other  authorities  here  cited.  "  Thus,  a  witness 
may  not  be  impeached  by  evidence  that  he  is  in  the  habit  of  asso- 
ciating with  lewd  and  unchaste  women,  neither  is  it  permissible, 
as  a  rule,  to  impeach  a  female  witness  by  attacking  her  reputation 
for  chastity  even  where  it  is  proposed  to  prove  that  she  is  a  common 
prostitute."  ^ 

CREDIBILITY,     WEIGHT     AND     SUFFICIENCY 

§  372.   Credibility  of  Witnesses  for  Jury. 

The  credibility  of  the  witnesses  is  for  the  jury,  under  proper 
instructions  from  the  court .^  The  maxim,  "  Falsus  in  uno,  falsus 
in  omnibus",  has  to  do  solely  with  the  weight,  not  with  the  admissi- 
bility, of  the  evidence.     The  jury  is  the  sole  judge  of  the  credibility 

§  371.   »  Reg.     V.     Woodhead,     2  « Kolb  v.  Union  R.  R.  Co.  23  R. 

Car.  &  K.  520.  I.  72,  49  Atl.  392,  54  L.  R.  A.  646. 
'  Reg.  V.  Cassidy,  1  F.  &  F.  79.  §  372.   '  Cuomo  v.  United  States, 

«  Marshall  v.   United  States,    197  231  Fed.  116,  145  C.  C.  A.  304  (2d 

Fed.  511,  117  CCA.  65  (2d  Cir.).  Cir.) ;     United   States   v.   Post,    128 

*  1 1  111.,  307,  373.  Fed.  950;    United  States  v.  Murphy, 

6  82  111.,  570.  16  Pet.  (U.  S.)  203,  10  L.  ed.  938. 

308 


Chap.  XXXII]     evidence  —  number  of  witnesses  [§  373  a 

of  the  witness.  If  they  believe  that  a  witness  has  willfully  and 
knowingly  given  false  testimony,  they  are  no  longer  required,  as  a 
rule  of  law,  to  reject  his  entire  testimony.  But  they  may  believe 
him  to  be  so  discredited  by  his  falsehood  in  the  one  matter  that 
they  will  give  no  weight  to  his  testimony  on  any  point.^  As  a 
general  rule,  positive  testimony  as  to  a  particular  fact,  uncon- 
tradicted, should  control  the  decision  ;  but  this  rule  may  not  apply, 
as  where  there  is  an  inherent  improbability  in  the  witness'  state- 
ments, contradiction  by  physical  facts,  or  a  manner  of  testifying 
raising  doubts  as  to  the  witness'  sincerity.^  The  credibility  of 
uncorroborated  witnesses  who  have  been  convicted  of  crime  is  for 
the  jury,'*  but  a  conviction  based  on  such  testimony  will  not  be 
set  aside  on  motion  for  a  new  trial  unless  in  the  judgment  of  the 
court  the  conviction  was  unjust.^ 

§  373.  Weight  and  Sufficiency  of  Evidence  For  Jury. 

Moral  probability,  however  strong,  cannot  take  the  place  of 
legal  evidence,  and  inferences  which  the  jury  may  draw  in  a  criminal 
case  must  be  based  upon  facts  which  of  themselves  tend  to  establish 
the  guilt  of  the  accused.^  The  evidence  in  every  criminal  case 
should  be  suflficient  to  warrant  a  reasonable  conclusion  of  the 
defendant's  guilt.  Otherwise,  it  is  the  duty  of  the  trial  court  to 
instruct  a  verdict  in  his  favor.  Evidence  only  suflEicient  to  raise 
a  conjecture  or  suspicion  is  not  legal  evidence,  for  the  jury  must  be 
governed  by  the  evidence  of  facts  upon  which  the  suspicion  is 
based,  not  by  the  suspicion  itself.^ 

§  373  a.  Evidence — Number  of  Witnesses. 
On  the  ground  that  the  admission  of  cumulative  evidence  is 
within  the  discretion  of  the  court,  it  is  held  that  the  limiting  of  the 

="  Shecil  V.  United  States,  226  Fed.  United  States,  181  Fed.  1,  104  C.  C. 

184,  141  C.  C.  A.  181  (7th  Cir.).  A.  69  (3d  Cir.). 

3  Norton    v.    United    States,    205  » United    States    v.    Knoell,    230 

Fed.  593,  601,  123  C.  C.  A.  609  (8th  Fed.  509,  affirmed  239  Fed.  16,  152 

Cir.) ;   Quock  Ting  v.  United  States,  C.  C.  A.  66  (3d  Cir.). 
140  U.  S.  417,  35  L.  ed.  501,  11  S.  §  373.   '  Wolf    v.    United    States, 

C.  733.  238  Fed.  902,  906,  152  C.  C.  A.  36 

*  United  States  v.  Knoell,  230  Fed.  (4th  Cir.). 
509,   affirmed   239   Fed^  16,    152   C.  ^  Mickle    v.    United    States,    157 

C.  A.  66   (3d  Cir.) ;    Richardson  v.  Fed.  229,  84  C.  C.  A.  672  (Sth  Cir.). 

309 


§  373]  EVIDENCE  [CiiAp.  XXXir 

number  of  witnesses  testifying  to  facts  tending  to  show  good  faith 
of  defendants  to  thirteen,  where  about  one  hundred  thirty  were 
tendered,  was  within  the  discretion  of  the  court.^ 

accomplices'   testimony 

§  374.   Corroboration  of  Accomplice. 

While  there  is  no  absohite  rule  of  law  preventing  convictions 
on  the  testimony  of  accomplices  if  juries  believe  them,^  it  is  un- 
doubtedly the  better  practice  for  courts  to  caution  juries  against 
too  much  reliance  upon  the  testimony  of  accomplices,  and  to 
require  corroborating  testimony  before  giving  credence  to  them; 
but  such  charge  to  be  presented  to  the  jury  must  be  asked  by 
counsel  for  the  defendant.-  But  in  a  very  recent  case,^  Judge 
Thomas  took  the  case  from  the  jury  where  the  accomplice  had 
contradicted  himself  on  the  stand  and  his  testimony  was  so 
shaken  and  discredited  that  the  learned  jurist  felt  that  he  could 
not  upon  his  conscience  hazard  the  libert}^  of  the  defendant  upon 
such  testimony.  In  other  words,  where  testimony  of  accom- 
plices is  relied  on  by  the  government,  it  is  recognized  as  the 
better  practice  for  the  court  in  its  charge  to  direct  attention  to  the 
complicity  of  the  witnesses,  and  to  duly  caution  the  jury  respecting 
such  testimony.  But  error  is  not  predicable  merely  for  failure 
to  so  charge  the  jury.*    In  Sykes  v.  United  States,^  and  in  Ryan 

§  373  a.   1  Chapa  v.  United  States,  Cir.) ;    Diggs  v.  United  States,  242 

261  Fed.  775,  —  C.  C.  A.  —  (—  Cir.).  U.  S.  470,  61  L.  ed.  442,  37  S.  C.  192, 

§  374.    1  Caminetti       v.       United  affirmed  220  Fed.  545,  136  C.  C.  A. 

States,  242  U.  S.  470,  61  L.  ed.  442,  147  (9th  Cir.) ;    Holmgren  v.  United 

37  S.  C.  192,  and  the  cases  cited  in  States,  217  U.  S.  509,  54  L.  ed.  861, 

the  immediately  succeeding  notes.  30   S.    C.    588 ;     Gretsch   v.    United 

2  Crawford  v.  United  States,  212  States,  242  Fed.  897,   155  C.  C.  A. 

U.  S.  183,  53L.ed.  405,29  S.C.  260;  485    (3d    Cir.);     Knoell    v.    United 

Holmgren     v.     United     States,  '  217  States,  239  Fed.  16,  152  C.  C.  A.  66 

U.  S.  509,  54  L.  ed.  861,  30  S.  C.  (3d  Cir.),   affirmihfj   230    Fed.   509; 

588;    Bennett  v.  United  States,  227  United  States  v.  Giuliani,  147  Fed. 

U.  S.  333,  57  L.  ed.  531,  33  S.  C.  288;  594 ;    United  States  v.  Fischer,  245 

Lung    V.    United    States,    218    Fed.  Fed.    477,    affirmed    250    Fed.    793, 

817,  134  C.  C.  A.  505  (9th  Cir.).  163  C.  C.  A.  125  (3d  Cir.) ;    Rollis 

'  United    States   v.    Murphy,   253  v.  United  States,  246  Fed.  832,  159 

Fed.  404.  C.  C.  A.  134  (5th  Cir.) ;    Patterson 

*  Wallace   v.    United    States,    243  i;.    United    States,    246    Fed.    833, 

Fed.  300,  307,  ir.B  C.  C.  A.  80  (7th  159  C.  C.  A.  135  (5th  Cir.) ;   Bossel- 

310 


Chap.  XXXII]        CORROBORATION  OF  ACCOMPLICE  [§  374 

V.  United  States,^  corroboration  other  than  the  evidence  of  accom- 
plices connecting  the  accused  with  the  crime  was  required  in  order 
to  sustain  the  conviction.  In  the  recent  case  of  Crawford  v. 
United  States/  Mr.  Justice  Peckham  adverted  to  the  cautiousness 
that  should  be  exercised  by  courts  in  ruling  upon  the  admissibility 
of  remote  circumstances  in  criminal  prosecutions,  dependent  upon 
the  testimony  of  a  person  sustaining  the  relation  of  particeps 
criminis  to  the  case,  and  said :  "  But  a  felon,  being  also  a  con- 
fessed accomplice,  was  thus  produced  by  the  Government  as  a 
witness  for  the  purpose  of  proving  its  case  against  defendant.  .  .  . 
Without  his  evidence  it  would  have  been  difficult,  if  not  impos- 
sible, to  convict  the  defendant.  .  .  .  The  evidence  of  a  witness, 
situated  as  was  Lorenz,  is  not  to  be  taken  as  that  of  an  ordinary 
witness,  of  good  character,  in  a  case  whose  testimony  is  generally 
and  prima /acie  supposed  to  be  correct.  .  .  .  The  facts  surround- 
ing this  case  make  it  particularly  important  that  the  rules  in  regard 
to  material  errors  should  be  most  rigidly  adhered  to.  If  it  be  not 
clear  that  no  harm  could  have  resulted  from  the  commission  of 
this  material  error,  the  judgment  should  be  reversed."  ^  There 
is  no  precise  formula  for  such  a  charge  which  must  be  observed 
in  the  federal  courts.  The  admonition  to  be  given  is  a  matter 
of  caution  and  not  a  hard  and  fast  rule  of  law.  The  language 
used  may  properly  be  varied  to  some  extent  according  to  the 
degree  of  criminality  of  the  accomplice  and  the  circumstances 
under  which  he  testifies.^  The  uncorroborated  testimony,  con- 
tradictory and  contradicted  testimony  of  a  confessed  criminal, 
induced  by  hope  of  immunity,  that  the  accused,  who  was  not 

man  v.  United  States,  239  Fed.  82,  C.  C.  A.  153  (2d  Cir.) ;    Mark  Yick 

152  C.  C.  A.  132  (2d  Cir.) ;    Erber  Hee  v.  United  States,  223  Fed.  732, 

V.    United    States,    234    Fed.    221,  139  C.  C.  A.  262  (2d  Cir.). 

148  C.  C.  A.  123  (2d  Cir.) ;  Cra^d^ord  »  204  Fed.  909,  123  C.  C.  A.  205 

V.  United  States,  212  U.  S.  183,  53  (8th  Cir.). 

L.  ed.  465,  29  S.  C.  260;    Lung  v.  «216  Fed.  13,  132  C.  C.  A.  257 

United    States,    218    Fed.    817,    134  (7th  Cir.). 

C.  C.  A.  505  (9th  Cir.) ;   Richardson  ^  212  U.   S.    183,   203,   53  L.   ed. 

r.    United   States,    181    Fed.    1,    104  465,  29  S.  C.  260. 

C.  C.  A.  69  (3d  Cir.) ;   United  States  « Richards  v.  United  States,   175 

V.  Flemming,  18  Fed.  907;    Ahearn  Fed.  911,  99  C.  C.  A.  401  (Sth  Cir.). 

V.  United  States,   158  Fed.  606,  85  « Hays  v.  United  States,  231  Fed. 

C.  C.  A.  428  (2d  Cir.) ;    Hanley  v.  106,    110,    145    C.    C.   A.    294    (8th 

United    States,    123    Fed.    849,    59  Cir.). 

311 


§  374]  EVIDENCE  [Chap.  XXXII 

present  when  the  crime  was  committed,  was  one  of  the  perpe- 
trators or  instigators,  does  not  constitute  substantial  evidence 
of  that  fact  which  will  sustain  a  conviction.^"  Keliher  v.  United 
States"  follows  the  law  of  Massachusetts  as  it  stood  at  the  time 
of  the  Revolution,  and  requires  corroboration  in  "  portions  of  the 
testimony  material  to  the  issue."  ^^  The  rule  as  to  cautioning  the 
jury  should  apply  where  witnesses  introduced  by  the  defendant 
confess  themselves  to  be  confederates  in  the  crime. ^^  The  testi- 
mony or  confession  of  an  alleged  hireling  accomplice,  turned  State's 
evidence,  was  held  to  be  sufficiently  corroborated  by  circumstances 
and  his  facile  character  and  characteristics  making  him  an  easy 
tool  for  the  accused.^^  The  proper  reluctance  of  the  courts,  in  the 
enforcement  of  a  wise  policy,  to  permit  a  conviction  based  on 
accomplice  testimony  to  stand,  is  overborne  by  a  verdict  which 
gives  credence  to  such  testimony,  unless  this  is  in  turn  overborne 
by  the  judgment  of  the  court  that  the  conviction  was  unjust.^^ 

§  375.   Evidence  of  Coconspirators  —  When  Admissible. 

During  the  pendency  of  the  conspiracy,  any  declaration  of  a 
conspirator  made  for  the  purpose  of  accomplishing  or  in  the  prose- 
cution of  same  is  admissible  against  all  the  conspirators,  but  an 
admission  of  one  conspirator  after  the  conspiracy  has  come  to 
an  end,  either  by  success  or  failure  in  attaining  its  object,  is  not 
admissible  against  the  others.^ 

DIRECT    AND     CROSS-EXAMINATION 

§  376.  Leading  Questions  on  Direct  Examination. 
Leading  questions  suggesting  an   answer  which  will  be  pre- 
sumably favorable  to  the  questioner  are  as  a  general  rule  for- 

10  Sykes    v.    United    States,    204  "  Valdez  v.  United  States,  244  U. 

Fed.  909,  913,  123  C.  C.  A.  205  (8th  S.  432,  61  L.  ed.  1242,  37  S.  C.  725. 

Cir.).  "  United  States  v.  Knoell,  230  Fed. 

"  193  Fed.  8,  15,  114  C.  C.  A.  128  509. 

(1st  Cir.).  §  375.   i  Heard   v.    United   States, 

12 , See  aZso  United  States  i;.  Giuliani,  255  Fed.  829,  —  C.  C.  A.  —  (8th 

147    Fed.    594 ;     United    States    v.  Cir.) ;     Donnelly   v.    United    States, 

Ybanez,  53  Fed.  536 ;   United  States  228  U.  S.  243,  57  L.  ed.  820,  33  S.  C. 

V.  Lancaster,  44  Fed.  896  (following  449;    Logan  v.   United  States,    144 

the  Massachusetts  doctrine).  U.  S.  263,  36  L.  ed.  429,  12  S.  C. 

"United  States  v.  Sykes,  58  Fed.  617;    Brown  v.   United  States,    150 

1000.  U.  S.  93,  37  L.  ed.  1010,  14  S.  C.  37; 

3r2 


Chap.  XXXII]       DIRECT   AND   CROSS-EXAMINATION  [§  STft 

bidden.^  A  leading  question  is  one  which  suggests  or  leads  ta 
the  answer,  "  which  ",  as  Greenleaf  expresses  it,  "  embodying  a 
material  fact,  admits  of  an  answer  by  a  simple  negative  or  affirm- 
ative ",  ^  or,  as  Starkie  says,  "  to  which  the  answer,  '  yes  ',  or 
*  no  ',  would  be  conclusive."  ^  Putting  words  into  the  witness' 
mouth  is  clearly  objectionable.  So,  where  a  witness  was  asked  if 
he  remembered  the  accused  making  a  specific  statement  to  him, 
quoting  his  express  words,  the  court  said :  "  It  must  be  confessed 
that  this  was  most  obnoxious  to  the  objection  of  a  leading  exam- 
ination of  the  prosecution's  own  witness.  It  not  only  suggested 
the  matter  desired,  but  put  words  in  the  mouth  of  the  witness, 
who  could  only  say,  '  It  was  something  like  that.'  The  Govern- 
ment, however,  got  the  full  force  of  the  words  suggested  by  the 
prosecutor,"  ^  Words  are  at  times  especially  significant.  If 
counsel  are  permitted  to  so  frame  a  question  put  to  their  witness 
as  to  suggest  the  answer  desired,  there  is  always  imminent  danger 
of  getting  before  the  jury  phrases  and  ideas  not  really  those  of  the 
witness.^  Leading  questions  may  not  be  put  upon  the  examination 
in  chief.  The  rule  is  well  settled,  though  there  are  some  excep- 
tions to  it.^  "  The  general  rule  undoubtedly  is  to  leave  the  pro- 
priety of  leading  questions  to  the  sound  discretion  of  the  trial 
court,  the  exercise  of  which  is  not  ordinarily  ground  of  error.  The 
application  of  the  rule  obtains  where  the  witness  is  apparently 
unwilling,  or  unfriendly  to  the  questioner,  or  where  the  party  has 
been  misled  by  previous  assurances  of  counsel.  It  must,  however, 
be  conceded  that  the  abuse  of  such  discretion  would  have  no 
corrective  if  it  were  rigidly  maintained  that  it  is  not  reviewable."  ^ 

Roj^al  Insurance  Co.  v.  Taylor,  254  '  1  Stark.  150 ;    United  States  v. 

Fed.  805,  —  C.  C.  A.—  (4th  Cir.).  Angell,  11  Fed.  34,  39. 

§  376.   1  St.  Clair  v.  United  States,  *  Nurnberger    t;.     United    States, 

154  U.  S.  134,  38  L.  ed.  936,  14  S.  156  Fed.  721,  732,  84  C.  C.  A.  377 

C.     1002;      Nurnberger    v.     United  (8th  Cir.). 

States,  156  Fed.  721,  732,  84  C.  C.  A.  ^  Nurnberger    v.    United     States, 

377    (8th    Cir.);     Peters   v.    United  156  Fed.  721,  735,  84  C.  C.  A.   377 

States,  94  Fed.  127,  36  C.  C.  A.  105  (8th  Cir.). 

(9th  Cir.);    United  States  v.  Angell,  'United  States  v.  Angell,  11  Fed. 

11   Fed.   34,   39;     United   States  v.  34,39. 

Dickinson,  2  McLean,  325,  331,  Fed.  ''  Nurnberger    v.    United    States, 

Cas.  No.  14958.  156  Fed.  721,  734,  84  C.  C.  A.  377 

2 1  Greenl.  481.  .  (8th  Cir.). 

313 


§  377]  EVIDENCE  [Chap.  XXXII 

§  377.  Surprise,  Etc. 

There  may  be  circumstances,  arising  from  the  conduct  of  a 
witness,  which  shall  require  leading  questions  to  be  put  to  him, 
when  examined  as  a  witness  in  chief.  This  matter  must  depend 
upon  the  judgment  of  the  Court.^  Where  a  counsel  introducing 
a  witness  is  taken  by  surprise  by  his  answers,  he  may  ask  the  court 
to  be  permitted  to  put  leading  questions  to  him.  The  matter  is  in 
the  sound  discretion  of  the  court.^  The  party  so  surprised  may 
also  show  the  facts  to  be  otherwise  than  as  stated,  although 
this  incidentally  tends  to  discredit  the  witness.^  A  party  who 
calls  a  witness  and  is  taken  by  surprise  by  his  unexpected  and 
unfavorable  testimony  may  question  him  concerning  declara- 
tions and  statements  previously  made  by  him,  hd  he  cannot  im- 
peach the  ivitness^  Among  other  exceptions  to  the  rule  that 
leading  questions  may  not  be  put  on  cross-examination,  it  is  said, 
both  by  Greenleaf  and  Starkie,  that,  where  a  witness  is  called 
to  contradict  the  testimony  of  a  former  witness,  who  has  stated 
that  such  and  such  expressions  were  used,  or  certain  things  said, 
it  is  the  usual  practice  to  ask  whether  those  particular  expressions 
were  used,  or  those  things  said,  without  putting  the  question  in 
the  general  form  of  inquiring  what  was  said.^ 

§  378.  Form  of  Question. 

As  to  the  form  of  a  question  to  be  propounded  to  a  witness  in 
chief,  the  general  rule  is  that  a  question  shall  not  be  so  propounded 
to  a  witness  as  to  indicate  the  answer  desired.  The  form  "  Do 
you  or  do  you  not  know?  "  etc.  has  been  held  a  leading  question, 
which  may  be  so  emphasized  as  to  indicate,  in  the  strongest  terms, 
the  desired  answer.  It  is  a  matter  of  no  great  difficulty,  in  every 
examination  of  a  witness,  by  a  general  remark  to  inform  him  on 
what  points  he  is  to  be  examined,  and  then  to  elicit  his  knowledge 

§  377.   1  United  States  v.  Dickin-  U.  S.  303,  309,  38  L.  ed.  170,  14  S. 

son,  2  McLean,  325,  331,  Fed.  Cas.  C.  334. 

No.  14958.  ■»  Hurley    v.    State,    46    Ohio    St. 

2  St.  Clair  v.  United  States,   154  320,  21  N.  E.  645.     (This  case  con- 

U.  S.  134,  150,  38  L.  ed.  936,  14  S.  tains  a  review  of  all  the  cases  on  the 

C  1002;    Putnam  v.  United  States,  subject,   both   in   England   and   the 

162  U.  S.  687,    694,  40  L.  ed.  1118,  United  States.) 

16  S.  C.  923.  .  6 1  Stark.  152 ;    1  Greenl.  482. 

'  Hickory    v.    United    States,    151 
314 


Chap.  XXXII]  RIGHT   TO    CROSS-EXAMINATION  [§  381 

respecting  them  by  such  questions  as  do  not  lead  to  the  answer 
desired.^ 

§  379.   Leading  Questions  on  Cross-Examination. 

In  the  cross-examination  leading  questions  are  admissible  on 
the  ground  that  the  witness,  having  been  called  by  one  party, 
may  not  be  equally  willing  to  disclose  all  he  knows  that  shall  be 
favorable  to  the  other.^ 

§  380.   Refreshing  Memory. 

A  witness  may  refer  to  notes  to  refresh  his  memory,  but  he  is 
not  allowed  to  read  them  as  his  testimony.^  A  witness  may, 
while  under  examination,  refresh  his  memory  by  the  use  of  a 
writing  made  by  himself  at  or  so  near  the  time  of  the  transaction 
that  the  facts  are  fresh  in  his  memory,  or  by  the  use  of  any  writing, 
not  made  by  himself,  which  he  read  or  thoroughly  examined  while 
the  facts  were  fresh  in  his  recollection,  and  which  he  then  knew 
stated  the  facts  correctly.^  Government  witnesses  may  be  asked 
in  examination  in  chief  as  to  written  and  all  statements  made 
by  them  to  Government  representatives  with  relation  to  the 
subject  matter  of  the  case  on  trial  for  the  purpose  of  refreshing 
their  memory.^  However,  where  the  witness  is  permitted  to 
refresh  his  recollection  with  a  paper,  it  is  to  be  tendered  to  the 
other  side  for  inspection  just  as  soon  as  it  has  been  identified, 
otherwise,  the  defendant's  right  of  confrontation  is  violated.'* 

§  381.   Right  to  Cross-Examination. 

Evidence  must  be  so  presented  that  the  opponent  shall  have  the 
opportunity  of  testing  it  by  cross-examination.^    So,  an  official 

§  378.   1  United  States  v.  Dickin-  Fed.  517,  521,  135  C.  C.  A.  267  (3d 

son,  2  McLean,  325,  331,  Fed.  Cas.  Cir.). 
No.  14958.  3  Hyde  v.  United  States,   225  U. 

§  379.   1  United  States  v.  Dickin-  S.  347,  56  L.  ed.  1114,  32  S.  C.  793. 
son,  2  McLean  325,  331,  Fed.  Cas.  *  Prdjun    v.    United    States,    237 

No.  14958.  Fed.  799,  151  C.  C.  A.  41  (6th  Cir.) ; 

§  380.   1  McClendon     v.      United  Morris   v.   United   States,    149   Fed. 

States,  229  Fed.  523,  143  C.  C.  A.  123,  80  C.  C.  A.  112  (5th  Cir.). 
691  (8th  Cir.).  §  381.   i  United   States   v.    O.    G. 

^Hodson    V.    United    States,    250  Hempstead   &   Son,    153    Fed.    483; 

Fed.  421,  424,  162  C.  C.  A.  491  (8th  United   States  v.   French,    117   Fed. 

Cir.) ;     Putnam    v.    United    States,  976 ;    Lutcher  v.   United  States,   72 

162  U.  S.  687,  694,  40  L.  ed.  1118,  Fed.   968,    19    C.    C.    A.    259    (5th 

16  S.  C.  923 ;  The  J.  S.  Warden,  219  Cir.). 

315 


§  381]  EVIDENCE  [Chap.  XXXII 

report  by  a  Government  chemist,  made  for  the  Board  of  General 
Appraisers,  relating  to  merchandise  involved  in  the  case,  was  held 
incompetent  because  ex  parte  and  not  subject  to  cross-examination.^ 
And  the  deposition  of  a  deceased  witness,  taken  without  notice 
to  the  defendant,  and  without  his  presence,  or  that  of  any  one  in 
his  behalf,  is  not  admissible  against  him  on  his  trial.' 

§  382.   Scope  of  Cross-Examination. 

A  full  cross-examination  of  a  witness  upon  the  subjects  of  his 
examination  in  chief  is  the  absolute  right,  not  the  mere  privilege, 
of  a  party  against  whom  he  is  called,  and  a  denial  of  this  right  is 
a  prejudicial  and  fatal  error .^  It  is  only  after  the  right  has  been 
substantially  and  fairly  exercised  that  the  allowance  of  cross- 
examination  becomes  discretionary.^ 

§  383.   Inconsistent  Statements. 

When  the  Government  calls  a  witness  to  establish  the  charge 
laid  in  the  indictment  against  a  defendant,  it,  in  effect,  vouches 
for  the  truth  of  the  testimony  thus  given  by  the  witness,  who  is 
then  subject  to  a  fair  and  full  cross-examination  upon  that  subject. 
It  is  always  proper,  relevant  and  material  cross-examination  to 
draw  forth  from  a  witness  the  fact  that,  when  the  transaction 
was  recent  and  his  recollection  fresh,  he  had  told  a  different  story, 
one  so  inconsistent  with  that  which  he  had  testified  that  both 
stories  could  not  be  true.^ 

§  384.  What  Will  Not  Prevent  Cross-Examination. 

Neither  a  witness  nor  a  party  may  lawfully  escape  a  cross- 
examination  by  an  admission  that  on  another  occasion  the  witness 
had  made  statements  inconsistent  with  his  testimony  at  the  trial 
and  that  they  were  false.  Cross-examination  may  not  be  shut 
off  in  this  way.     The  cross-examiner  has  the  right  to  prove  by  his 

2  United  States  v.  O.  G.  Hemp-  829,  —  C.  C.  A.  —  (8th  Cir.) ;  Gil- 
stead  &  Son,  153  Fed.  483.  mer  v.  Higley,   110  U.  S.  47,  28  L. 

'UnitedStates;;.  French,  117  Fed.  ed.   62,   3  S.   C.  478;    Resurrection 

976.  Gold   Mining  Co.   v.   Fortune   Gold 

§  382.   1  Heard  v.   United  States,  Mining  Co.,  129  Fed.  668,  64  C.  C. 

255  Fed.  829,  —  C.  C.  A.  —  (8th  Cir.).  A.  180  (8th  Cir.). 

2  Safford  v.  United  States,  233  Fed.  §  383.   '  Heard  v.   United  States, 

495,    147   C.   C.   A.   381    (2d   Cir.) ;  255  Fed.  829,  —  C.  C.  A.  —  (8th 

Heard   v.    United   States,    255   Fed.  Cir.). 
316 


Chap.  XXXII]      LIMITATIONS    OF    CROSS-EXAMINATION  [§  385 

adversary's  witness,  if  he  can,  what  inconsistent  statements  he 
has  made,  not  only  in  general,  but  in  every  material  detail,  for  the 
more  specific  and  substantial  the  contradictory  statements  were, 
the  less  credible  is  the  testimony  of  the  witness.^ 

§  385.   Limitations  and  Scope  of  Cross-Examination. 

In  the  case  of  an  ordinary  witness  or  where  the  defendant 
takes  the  stand,  the  cross-examination  is  usually  confined  within 
the  scope  of  the  direct  examination.^  State  rules  on  the  subject 
of  cross-examination  are  not  accepted  by  the  Federal  courts, 
which  are  controlled  by  their  own  practice  in  this  respect,  and  do 
not  permit  cross-examination  to  go  beyond  the  scope  of  the  direct 
examination. 2  A  party  in  whose  behalf  a  witness  is  called  has  the 
right  to  restrict  his  cross-examination  to  the  subjects  of  his  direct 
examination,  and  a  violation  of  this  right  is  reversible  error .^ 
The  scope  of  the  proper  cross-examination  is  determined  by  the 
subject  matter  of  the  direct  examination  and  not  by  the  precise 
questions  or  answers  relative  to  such  matters  in  the  direct  exam- 
ination. When  a  witness  is  examined  in  chief  regarding  a  con- 
versation or  statement  concerning  a  given  subject,  he  may  be 
cross-examined  to  bring  forth  the  whole  of  that  conversation.^ 
The  trial  court  has  a  wide  range  of  discretion  regarding  cross- 
examination.^     In  the  cross-examination  of  witnesses  in  criminal 

§  384.    »  Heard  v.   United  States,  Harrold  v.  Oklahoma,   169  Fed.  47, 

255  Fed.  829,  —  C.  C.  A.   —  (8th  94  C.  C.  A.  415  (8th  Cir.) ;    Phila- 

Cir.).  delphia    &    Trenton    R.    R.    Co.    v. 

§  385.    1  Sawyer  v.  United  States,  Stimpson,   39   U.   S.    (14  Pet.)   448, 

202  U.  S.  150,  50  L.  ed.  972,  26  S.  10  L.  ed.  535;   Houghton  v.  Jones,  1 

C.  575;  Fitzpatrick  t;.  United  States,  Wall.    (U.   S.)   702,    17  L.  ed.   503; 

178  U.  S.  304,  44  L.  ed.  1078,  20  S.  Resurrection    Gold   Mining    Co.    v. 

C.  944;    Johnston  v.  Jones,  1  Black  Fortune  Gold  Mining  Co.,  129  Fed. 

(U.  S.),  209,  17  L.  ed.  117;    Teese  668,  64  C.  C.  A.  180  (8th  Cir.). 
t;.  Huntingdon,  23  How.   (U.  S.)  2,  ^  Heard  v.  United  States,  255  Fed. 

16  L.  ed.  479.  829,  —  C.  C.  A.  —  (8th  Cir.) ;  Com- 

*  Hendrey   t'.    United   States,    233  mercial   State   Bank  v.    Moore,    227 

Fed.  5,  15,  147  C.  C.  A.  75  (Gth  Cir.) ;  Fed.  19,  141  C.  C.  A.  573  (8th  Cir.) ; 

McKnight  v.  United  States,  122  Fed.  Gilmer  v.  Higley,   110  U.  S.  47,  28 

926,  61  C.  C.  A.  112  (6th  Cir.).  L.  ed.  62,  3  S.   C.  471;    ^oUan  Co. 

'  Heard  v.  United  States,  255  Fed.  v.  Standard  Music  Roll  Co.,  176  Fed. 

829,  —  C.  C.  A.  —  (8th  Cir.) ;   Illi-  811,  815. 

nois  Central  R.  R.  Co.  v.  Nelson,  212  *  Holsman  i^.  United  States,  248 

Fed.  69,  128  C.  C.  A.  525  (8th  Cir.) ;  Fed.  193,  160  C.  C.  A.  271  (9th  Cir.). 

317 


§  385]  EVIDENCE  [Chap.  XXXIl 

cases,  a  wide  latitude  is  permitted.  It  is  always  permissible  to 
show  the  interest,  bias  and  prejudice  of  the  witness,  and  to  inquire 
about  any  and  every  relevant  and  material  matter  to  the  issue 
in  controversy  which  in  any  way  tends  to  throw  light  on  the 
feelings  of  the  witness,  or  explains  and  makes  clear  his  situation 
with  respect  to  the  defendant,  in  order  that  the  jury  may  be  fully 
informed  of  all  the  facts  and  circumstances  tending  to  throw  light 
on  the  weight  and  importance  of  the  evidence  as  given. ^  The 
right  of  cross-examination  is  not  limited  to  the  precise,  narrow 
scope  of  the  questions  in  chief,  but  extends  to  the  subject  matters 
of  the  direct  examination.^  A  defendant  is  not  confined  to  the 
remedy  of  a  motion  to  strike  out  evidence  improperly  admitted 
on  direct  examination.  He  is  entitled  to  a  cross-examination  to 
explain  what  would  otherwise  be  unfavorable  to  him.  A  court's 
withdrawal  of  evidence  from  the  consideration,  of  the  jury,  fre- 
quently is  much  less  effective  in  removing  from  their  minds  an 
impression  made  by  it  than  explanatory  or  rebutting  evidence 
going  to  prove  that  the  circumstance  which  the  excluded  evidence 
tended  to  prove,  was  one  incapable  of  supporting  an  inference 
unfavorable  to  the  party  against  whom  that  evidence  was  intro- 
duced.^ 

§  886.  Instances. 

Where  a  witness  testifies  to  the  good  reputation  of  an  accused, 
he  may  properly  be  asked  on  cross-examination  whether  he  has 
ever  heard  of  him  having  been  accused  of  doing  acts  wholly  in- 
consistent with  the  character  which  he  has  attributed  to  him, 
provided  the  form  of  the  questions  asked  is  not  so  objectionable 
as  to  justify  reversal.^  Questions  on  cross-examination  not  within 
the  scope  of  the  direct  examination,  and  not  relevant  to  the  issues, 
will  be  excluded.^  In  a  prosecution  for  false  swearing  in  a  bank- 
ruptcy proceeding,  it  was  held  improper  to  allow  the  govern- 

•  King  V.  United  States,  112  Fed.  §386.   ^  Jung     Quey     v.     United 

988,  995,  50  C.  C.  A.  647  (5th  Cir.).        States,  222  Fed.  766,  771,  138  C.  C.  A. 

7  Owl  Creek  Coal  Co.  v.  Goleb,  232      314  (9th  Cir.). 

Fed.  445,  448,  146  C.  C.  A.  439  (8th  ^  Kettenbach    v.    United    States, 

Cir.).  202  Fed.  377,  120  C.  C.  A.  505  (9th 

8  Meyer  v.  United  States,  220  Cir.) ;  Feener  v.  United  States,  249 
Fed.  822,  826,  135  C.  C.  A.  564  (5th  Fed.  425,  427,  161  C.  C.  A.  399  (1st 
Cir.).  Cir.). 

318 


Chap.  XXXII]         THE    DEFENDANT   AS   A   WITNESS  [§  387 

ment,  in  examining  a  hostile  witness,  to  bring  out  on  cross-exam- 
ination the  whole  of  his  testimony  before  the  referee,  where  it 
was  not  done  merely  to  refresh  his  memory.^  A  witness  who  has 
testified  to  contradictory  statements  of  the  prosecuting  witness 
can  be  cross-examined  as  to  whether  he  communicated  his  con- 
versation with  the  witness  to  the  defendant."*  Where  an  accused 
becomes  a  witness  in  his  own  behalf,  his  cross-examination  is  not 
restricted  to  the  precise  questions  put  to  him  in  direct.  It  is 
the  subject  matter  involved  which  governs  the  limitation  of  the 
inquiry.^  A  cross-examiner,  for  the  purpose  of  showing  the 
character  of  the  party  on  the  stand  from  his  own  admissions,  may 
go  into  collateral  matters,  but  he  is  bound  by  the  answers  he 
obtained.^  So,  where,  in  a  White  Slave  Act  violation  prosecution, 
the  defendant  testified  in  his  own  behalf,  and  on  cross-examination 
was  asked  if  he  had  not  beaten  a  certain  woman  with  his  fist, 
and  answered  in  the  negative,  it  was  held  the  government  could 
not  introduce  evidence  to  show  the  contrary.^  In  a  proceeding  for 
perjury,  where  the  prosecution  brought  out  on  cross-examination 
of  a  witness  that  she  admitted  she  falsely  charged  the  prosecuting 
witness  with  her  seduction,  the  defendant  is,  on  redirect  exam- 
ination, entitled  to  bring  out  her  explanation,  if  any,  for  her 
statement,  that  is,  whether  her  false  charge  or  her  testimony 
admitting  its  falseness,  was  true.* 

§  387.   The  Defendant  as  a  Witness. 

The  Act  of  Congress  is  as  follows :  ^  "In  the  trial  of  all  indict- 
ments, informations,  complaints  and  other  proceedings  against 
persons  charged  with  the  commission  of  crimes,  offenses  and  mis- 
demeanors, in  the  United  States  courts,  Territorial  courts  and 
courts-martial,  and  courts  of  inquiry,  in  any  State  or  Territory, 
including  the  District  of  Columbia,  the  person  so  charged  shall, 
at  his  own  request  but  not  otherwise,  be  a  competent  witness. 

3  Rosenthal  v.  United  States,  248  Fed.  679,  686,  131  C.  C.  A.  613  (7th 

Fed.  684,  160  C.  C.  A.  584  (8th  Cir.).  Cir.). 

^  Kinser    v.    United    States,    231  ^  Johnson   v.    United   States,    215 

Fed.  856,  146  C.  C.  A.  52  (8th  Cir.).  Fed.  679,  131  C.  C.  A.  613  (7th  Cir.). 

6  Stewart    v.    United    States,    211  »  Safford ;;.  United  States,  233  Fed. 

Fed.  41,  48,  127  C.  C.  A.  477  (9th  495,  503,  147  C.  C.  A.  381  (2d  Cir.). 

Cir.).  §387.   i  Act  of  March  16,   1878, 

«  Johnson   v.   United   States,   215  c.  37,  20  Stat.  L.  30. 

319 


§  387]  EVIDENCE  [Chap.  XXXII 

And  his  failure  to  make  such  request  shall  not  create  any  pre- 
sumption against  him."  But  when  a  party  offers  himself  as  a 
witness  in  his  own  behalf,  he  must  be  treated  as  any  other  wit- 
ness, and  subject  to  any  exceptions  that  would  apply  to  any 
other  witness.  In  other  words,  the  act  frees  him  from  such  dis- 
ability.^ However,  it  is  error  for  the  prosecuting  attorney  to 
obtain  evidence  as  to  the  accused's  habits  and  conduct,  the  only 
effect  of  which  is  to  degrade  the  defendant  before  the  jury.^ 

§  388.  Defendant  Cannot  Be  Required  to  Furnish  Original 
Evidence. 

A  defendant  in  a  criminal  case  cannot  be  compelled  to  answer 
on  cross-examination  as  to  any  facts  not  relevant  to  his  direct 
examination.  Thus,  if  the  prosecution  should  go  further  and  com- 
pel the  defendant,  on  cross-examination,  to  write  his  own  name  or 
that  of  another  person  when  he  had  not  testified  in  reference 
thereto  in  his  direct  examination,  this  would  be  error.  It  would 
be  a  clear  case  of  the  defendant  being  compelled  to  furnish  original 
evidence  against  himself.^ 

§  389.   Examination  of  the  Defendant. 

There  can  be  no  doubt  that  long  prior  to  our  independence  the 
doctrine  that  one  accused  of  crime  could  not  be  compelled  to 
testify  against  himself,  had  reached  its  full  development  in  the 
common  law,  was  there  considered  as  resting  on  the  law  of  nature, 
and  was  embedded  in  that  system  as  one  of  its  great  and  dis- 
tinguished attributes.^  It  is  improper  to  ask  a  witness  for  the 
prosecution  on  his  cross-examination,  who  admits  having  em- 
ployed counsel  to  assist  the  district  attorney,  the  question,  how 
much  he  paid  such  attorney.^  A  defendant  or  any  other  witness 
may  be  cross-examined  as  to  whether  he  is  addicted  to  the  use 
of  morphine  or  other  drugs.  He  may  also  be  asked  whether  he 
had  the  instrument  necessary  for  the  administration  of  the  drug 

2  United  States  v.  HoUis,  43  Fed.  States,  178  U.  S.  304,  315,  44  L.  ed. 

248 ;    Wolfson  i;.  United  States,  101  1078,  20  S.  C.  944. 
Fed.    430,    41    C.    C.    A.    422    (5th  §389.    i  Bram    v.    United    States, 

Cir.).  168  U.  S.  532,  545,  42  L.  ed.  568, 

»  Allen  V.  United  States,  115  Fed.  18  S.  C.  183. 
3,  52  C.  C.  A.  597  (9th  Cir.).  «  United   States   v.   Ball,    163   U. 

§  388.    »  Fitzpatrick      v.      United  S.  662,  41  L.  ed.  300,  16  S.  C.  1192. 
320 


Chap.  XXXII]  COURT   EXAMINING   WITNESSES  [§  390 

in  his  possession,  and  upon  the  production  of  same  it  may  be 
exhibited  to  the  jury.^  A  question  put  to  a  defendant  whether  he 
had  committed  another  specified  offense  was  held  admissible,  on 
cross-examination,  where  the  court  made  it  plain  to  the  jury  that 
the  evidence  was  admitted,  not  to  prove  the  offense  on  trial,  but 
solely,  in  so  far  as  it  involved  moral  delinquency,  as  affecting  his 
credibility  as  a  witness  in  his  own  behalf.'*  But  the  soundness  of 
this  decision  may  well  be  questioned.  When  the  accused  takes 
the  stand  in  his  own  behalf,  he  ought  not  be  heard  to  speak 
alone  of  those  things  favorable  to  his  interest  and  be  silent  on 
things  which  may  be  antagonistic  to  his  case.^ 

§  390.   Cross-Examination  of  Witnesses  Called  by  Court. 

If  there  be  a  person  whom  neither  party  to  an  action  chooses 
to  call  as  a  witness,  and  the  judge  thinks  that  that  person  is  able 
to  elucidate  the  truth,  the  judge  is  entitled  to  call  him.  When  a 
witness  is  called  by  the  judge,  the  counsel  of  neither  party  has  a 
right  to  cross-examine  him  without  the  permission  of  the  court. 
The  judge  must  exercise  a  discretion,  whether  he  will  allow  such 
witness  to  be  cross-examined.^  If  what  the  witness  has  said  in 
answer  to  the  questions  put  to  him  by  the  judge  is  adverse  to 
either  party,  the  judge  would  no  doubt  allow,  and  he  ought  to 
allow,  the  parties  to  cross-examine  the  witness  upon  his  answers. 
A  general  fishing  cross-examination  ought  not  to  be  permitted. 
In  the  present  case  the  answers  of  the  son  had  no  real  bearing 
upon  the  issues  in  the  action,  and  the  only  reason  for  cross- 
examining  him  must  have  been  a  wish  to  prejudice  the  jury,^  A 
witness  called  in  this  way  (by  the  court)  is  the  witness  of  the  judge, 
not  of  either  of  the  parties.  It  is  the  function  of  the  judge  to  try 
and  find  out  the  truth,  whether  he  is  hearing  a  case  with  or  without 
a  jury.  Neither  party  can  cross-examine  a  witness  so  called,  as 
of  right  —  leave  of  the  court  must  be  obtained.^     Where  a  witness 

'  Wilson    V.    United    States,    232  ^  Caminetti  v.  United  States,  242 

U.  S.  563,  58  L.  ed.  728,  34  S.  C.  347.  U.  S.  470,  61  L.  ed.  442,  37  S.  C. 

*  Christopoulo   v.    United   States,  192. 
230  Fed.  788,  791,  145  C.  C.  A.  98  §  390.   '  Coulson    v.    Disborough, 

(4th  Cir.) ;    Fields  v.  United  States,  L.  R.  2  Queens  Bench  Div.  316. 
221  Fed.  242,  137  C.  C.  A.  98  (4th  ^  Coulson  v.  Disborough,  supra. 

Cir.).  "  Uhid. 

VOL.  I  — 21  321 


§  390]  EVIDENCE  [Chap.  XXXII 

is  thus  called  and  examined  by  the  court,  a  general  cross-exam- 
ination should  not  be  allowed,  and  the  cross-examination  should 
be  limited  to  the  issues  in  the  case.'*  Where  the  prosecutor  did 
not  call  the  defendant's  father,  himself  suspected  of  the  crime, 
the  court  called  him  for  the  defendant,  but  allowed  him  to  be 
cross-examined  to  discredit  him,  yet  would  not  allow  him  to  be 
contradicted  by  other  witnesses.^ 

EXAMINATION   BY   COURT 

§391.  Improper  Catechism  by  Court. 

Where  a  witness  testified  positively  in  support  of  the  accused's 
alibi,  it  was  held  improper  for  the  court  to  catechize  him  at  length 
on  the  point,  and  tell  him  that  if  he  was  mistaken  he  could  correct 
his  statement,  and  to  think,  and  correct  his  testimony  if  there 
was  any  doubt  in  his  mind  concerning  it.^  The  examination  of 
witnesses  is  more  the  appropriate  function  of  counsel  than  of  the 
judge  of  the  court.  It  is  a  task  of  great  delicacy  and  much  diffi- 
culty for  a  presiding  judge  to  so  conduct  the  examination  of  a 
witness  as  to  prevent  the  jury  from  learning  the  trend  of  his 
mind.^  An  extended  examination  of  a  witness  by  the  court  must 
be  unfair  unless  it  partakes  partly  of  the  nature  of  a  cross-exam- 
ination, and  though  great  skill  and  tact  and  perfect  fairness  be 
employed,  there  is  much  danger  the  impression  or  opinion  of  the 
CQurt  as  to  the  truthfulness,  candor,  and  reliability  of  the  witness 
as  to  the  weight  and  value  of  his  testimony  will  be  manifested  to 
the  jury.^  Necessarily  the  extent  to  which  the  trial  judge  will 
participate  in  the  examination  of  a  witness  is  largely  a  matter  of 
discretion  with  him,  to  be  determined  from  the  circumstances  of 
the  particular  case  as  they  arise;  but  in  a  jury  trial  where  the 
parties  are  represented  by  able  counsel,  it  is  scarcely  possible  to 
conceive  circumstances  under  which  the  court  is  free  to  enter 
upon  a  lengthy  examination  of  witnesses.^  And  any  remarks 
calculated  to  prejudice  the  jury,  or  an  expression  of  opinion  by 

*  Coulson  V.  Disborough,  supra.  ^  Dunn  v.  People,  172  111.  582,  589, 

»  Reg.  V.  Bodle,  6  C.  &  P.  ISG.  50  N.  E.  137. 

§  391.    >  Glover  v.    United  States,  '  Dunn  v.  People,  172  111.  582,  595, 

147  Fed.  426,  77  C.  C.  A.   450  (8th  50  N.  E.  137. 

Cir.).  "O'Shea  v.  People,  218  lU.  352, 

359,  75  N.  E.  981. 
322 


Chap.  XXXII]  EXPERT  EVIDENCE  [§  392 

the  judge  in  the  hearing  of  the  jury,  has  been  held  ground  for  revers- 
ing the  judgment.'' 

EXPERT   AND    OPINION   EVIDENCE 

§  392.  In  General. 

Whether  a  witness  is  or  is  not  an  expert  as  to  any  particular 
science  or  art  is  to  be  determined  by  the  court  before  he  can  be 
admitted  to  testify  before  the  grand  jury  or  in  the  trial  of  a  cause.^ 
In  determining  the  admissibility  of  expert  testimony  it  is  always 
important  to  observe  the  distinction  between  the  province  of  the 
jury  and  that  of  the  expert,  because  generally  an  expert  will 
not  be  permitted  to  give  an  opinion  upon  a  question  which  it  is 
the  duty  and  province  of  the  jury  to  demand.^  The  probative 
value  of  an  expert's  testimony  is  for  the  jury,^  and  an  objection 
that  a  witness  qualifying  as  an  expert  generally,  lacks  knowledge 
of  the  subject  matter  of  his  testimony,  is  one  going  to  the  weight 
rather  than  to  the  admissibility  of  the  testimony."*  "  It  has  been 
declared  by  the  courts  that  expert  testimony  is  not  of  the  best  nor 
highest  order,  and  that  it  is  extremely  dangerous,  unless  well 
guarded,  and  closely  confined  within  its  legitimate  province.  It 
is  often  necessary,  as  in  this  case,  in  order  that  justice  may  be 
done ;  and  without  it  the  truth  cannot  always  be  determined. 
But  it  is  a  fact  well  known  to  every  practitioner  at  the  bar,  and 
within  the  judicial  knowledge  of  courts,  I  think,  that  latterly 
the  experts,  on  both  sides  of  the  cause,  become  too  often  eager 
attorneys  before  the  trial  is  ended  and  before  their  testimony  is 
given.  It,  therefore,  becomes  desirable,  and  necessary  to  the  due 
administration  of  justice,  that  the  scope  and  power  of  their 
utterances  shall  not  be  extended ;  that  they  shall  be  held  strictly 
to  the  rules  laid  down  for  their  guidance  and  control.  Especially 
should  this  be  so  in  criminal  cases,  where  the  liberty  or  life  of  the 

« Briggs  V.   People,   219   111.   330,  245  Fed.  477 ;    United  States  v.  KU- 

76  N.  E.  499;    Kennedy  v.  People,  patrick,  16  Fed.  765,  772. 
44  111.  283 ;    Marzen  v.  People,   173  ^  People  v.  Lehr,  196  111.  361,  63 

lU.  43,  50  N.  E.  249 ;    Cunningham  N.  E.  725. 

V.   People,    195  111.   550,   562,   63  N.  United    States    v.    Fischer,    245 

E.   517 ;    People  v.  Jacobs,   243   111.  Fed.  477. 
680,  90  N.  E.  1092.              ^  *  United    States    v.    Fischer,    245 

§  392.   1  United  States  v.  Fischer,  Fed.  477. 

323    • 


§  392]  EVIDENCE  [Chap.  XXXII 

accused  is  at  stake."  ^  The  Supreme  Court  of  Iowa  sanctioned 
as  instruction  to  the  jury  that  expert  evidence  is  of  the  lowest 
order.^  In  deciding  a  motion  in  a  patent  infringement  suit,  in 
1876,  Sir  George  Jessel,  Master  of  the  Rolls/  said  :  "  Now,  in  the 
present  instance  I  have,  as  usual,  the  evidence  of  experts  on  the 
one  side  and  on  the  other,  and,  as  usual,  the  experts  do  not  agree 
in  their  opinion.  There  is  no  reason  why  they  should.  As  I 
have  often  explained  since  I  have  had  the  honor  of  a  seat  on  this 
bench,  the  opinion  of  an  expert  may  be  honestly  obtained,  and 
it  may  be  quite  different  from  the  opinion  of  another  expert  also 
honestly  obtained.  But  the  mode  in  which  expert  evidence  is 
obtained  is  such  as  not  to  give  the  fair  result  of  scientific  opinion 
to  the  court.  A  man  may  go,  and  does  sometimes,  to  half  a  dozen 
experts.  I  have  known  it  in  cases  of  valuation  within  my  own 
experience  at  the  bar.  He  takes  their  honest  opinions,  he  finds 
three  in  his  favor  and  three  against  him ;  he  says  to  the  three  in 
his  favor,  will  you  be  kind  enough  to  give  evidence?  and  he  pays 
the  three  against  him  their  fees  and  leaves  them  alone ;  the  other 
side  does  the  same.  It  may  not  be  three  out  of  six,  it  may  be 
three  out  of  fifty.  I  was  told  in  one  case,  where  a  person  wanted  a 
certain  thing  done,  that  they  went  to  sixty-eight  people  before 
they  found  one.  I  was  told  that  by  the  solicitor  in  the  cause. 
That  is  an  extreme  case,  no  doubt,  but  it  may  be  done,  and 
therefore  I  have  always  the  greatest  possible  distrust  of  scientific 
evidence  of  this  kind,  not  only  because  it  is  universally  con- 
tradictory, and  the  mode  of  its  selection  makes  it  necessarily 
contradictory,  but  because  I  know  of  the  way  in  which  it  is  ob- 
tained. I  am  sorry  to  say  the  result  is  that  the  court  does  not  get 
that  assistance  from  the  experts  which,  if  they  were  unbiased, 
and  fairly  chosen,  it  would  have  a  right  to  expect." 

§  393.  Instances. 

An  experienced  chemist  was  held  qualified  to  testify  as  an  expert 
as  to  the  therapeutic  value  of  a  medicine  which  he  had  analyzed. 
It  was,  of  course,  for  the  jury  to  determine  the  weight  to  be  given 

'  People  V.  Vandcrhoof,  71  Mich.  ''  Thorn  v.  Worthing  Skating  Rink 

158.  Co.,  L.  R.  6  Ch.  Div.  415,  note  at 

•  Whi taker    v.    Parker,    42    Iowa,       p.  416. 
163,  69  N.  W.  427. 
324 


Chap.  XXXII]        NON-EXPERT    OPINION    EVIDENCE  [§  395 

to  his  testimony,  taking  into  consideration  his  knowledge  and 
experience,  as  to  which  he  had  testified.^  And  an  expert  chemist 
was  held  entitled  to  give  his  opinion,  in  a  prosecution  for  illegally 
manufacturing  smoking  opium,  as  to  the  difference  between  foreign 
and  domestic  smoking  opium.^  The  testimony  of  experts  upon 
the  results  appearing  from  account  books  which  are  in  evidence 
is  generally  accepted  as  a  valuable  aid  in  the  consideration  of  the 
accounts,  and  to  that  extent  relaxation  of  the  rule  as  to  the  best 
evidence  is  uniformly  approved  by  the  authorities.^ 

§  394.   Distinctions. 

A  distinction  must  be  kept  in  mind  between  expert  testimony 
and  testimony  such  as  that  of  a  person  in  a  particular  line  of 
business  identifying  goods  belonging  to  that  business.^  It  has 
been  said  that  expert  evidence  should  be  received  and  acted  upon 
with  much  caution,^  but  the  better  rule  probably  is  that  it  is  to  be 
weighed  and  judged  like  any  other  kind  of  evidence. 

§  395.   Non-Expert  Opinion  Evidence. 

The  opinions  of  witnesses  are  constantly  taken  as  to  the  result 
of  their  observations  on  a  great  variety  of  subjects.  All  that  is 
required  in  such  cases  is  that  the  witnesses  should  be  able  properly 
to  make  the  observations,  the  result  of  which  they  give ;  and  the 
confidence  bestowed  on  their  conclusions  will  depend  upon  the 
extent  and  completeness  of  their  examination  and  the  ability 
with  which  it  is  made.^  An  opinion  bearing  upon  the  financial 
ability  of  a  defendant  without  a  statement  of  facts  on  which  it 
was  based  was  held  inadmissible.^  Non-expert  witnesses  were 
permitted  to  testify  whether  a  person  was  suffering,  nervous,  in 
misery,  weak,  feeble,  in  distress,  sore  or  in  pain.^    Where  the 

§  393.   1  Samuels  v.  United  States,  2  United  States  v.  Pendergast,  32 

232  Fed.  536,  542,  146  C.  C.  A.  494  Fed.  198.     See  also  §  392  supra. 

(8th  Cir.).  §  395.    '  Hopt    v.    Utah,    120    U. 

2  Lee  Mow  Lin  v.  United  States,  250  S.  430,  437,  30  L.  ed.  708,  7  S.  C.  614. 
Fed.  694,  162  C.  C.  A.  656  (8th  Cir.).  2  Gould  v.  United  States,  209  Fed. 

3  Brown  v.  United  States,  142  730,  737,  126  C.  C.  A.  454  (8th 
Fed.  1,  73  C.  C.  A.  187  (7th  Cir.).  Cir.). 

§  394.   1  Kerrch  v.  United  States,  ^  Chicago    &    Eastern    lUinois   R. 

171  Fed.  366,  96  C.  C.  A.  258  (1st  Co.  v.  Randolph,  199  lU.  126,  65  N. 
Cir.).  '  E.  142. 

325 


§  395]  .  EVIDENCE  [Chap.  XXXll 

question  of  a  corporation's  insolvency  at  a  specified  time  is  collat- 
erally involved,  in  a  criminal  prosecution,  the  opinion  of  a  witness, 
otherwise  qualified,  who  was  in  a  position  to  know  the  facts,  may 
be  admissible  on  that  issue  for  what  it  is  worth.**  In  a  prosecution 
for  homicide  committed  on  an  Indian  reservation,  a  witness  was 
permitted  to  testify  that  from  an  intimate  knowledge  of  Indian 
characteristics  gained  from  many  years'  official  connection  with 
Indian  reservations,  and  his  observation  of  the  defendant  in  the 
light  of  such  knowledge,  the  latter  was  in  his  opinion  a  white  man 
and  not  an  Indian.  Such  evidence  may  not  be  very  strong  or 
conclusive,  but  it  is  good  for  what  it  is  worth. ^  A  witness,  who 
testified  that  he  had  been  accustomed  to  handling  firearms  for 
thirty  or  thirty-five  years,  was  permitted  to  testify  as  to  the 
apparent  freshness  of  cartridges  in  a  revolver  taken  from  a  defend- 
ant on  his  arrest  several  hours  after  an  alleged  assault,  though 
the  witness  was  not  shown  to  be  an  expert.^  Testimony  of  a  wit- 
ness that  when  certain  persons  arrived  on  a  property,  "  apparently 
by  arrangement,  they  all  rushed  in  there  together,"  deduced  from 
the  appearance  of  things,  was  held  incompetent.  It  would  have 
been  competent  to  prove  facts  and  circumstances  indicating  that 
the  men  rushed  in,  but  not  to  prove  the  impression  made  upon  the 
mind  of  the  witness.'^  The  "  impression  "  of  a  witness  that  a  voice 
he  heard  was  that  of  the  defendant,  was  held  incompetent.  (Ob- 
jected to  on  ground  of  irrelevancy.)^ 

§  396.   Medical  Expert  Testimony. 

Questions  to  medical  witnesses  requiring  their  opinions  are 
admissible  where  the  assumed  facts  recited  in  the  questions  are 
warranted  by  the  proof  in  the  case,  and  the  evidence  sought  to  be 
elicited  is  of  a  character  justifying  an  expression  of  opinion  b}^  the 
witnesses.  The  jury,  after  all,  are  at  liberty  to  give  to  such  evi- 
dence such  weight  as  in  their  judgment  it  is  entitled  to.^     Physi- 

*  Ilendrey  v.   United   States,    233  ^  Ball  v.  United  States,  147  Fed. 

Fed.  5,  15,  147  C.  C.  A.  75  (6th  Cir.).  32,  37,  78  C.  C.  A.  126  (9th  Cir.). 

6  Stewart  v.  United  States,  211  Fed.  »  Pilcher  v.  United  States,  1 13  Fed. 

41,  47,  127  C.  C.  A.  477  (9th  Cir.).  248,  51  C.  C.  A.  205  (5th  Cir.). 

« Jaclcson    v.    United   States,    102  §  396.    >  Bram   v.    United   States, 

Fed.  473,  485,  42  C.  C.  A.  452  (9th  168  U.  S.  632,  509,  42  L.  ed.  568,  18 

Cir.).  S.  C.  183. 
320 


Chap.  XXXII]         medical  expert  testimony  [§  396 

cians  are  not  allowed  to  give  their  opinions  upon  a  controverted 
case;  they  cannot  draw  inferences  of  fact  from  the  evidence, 
but  may  simply  declare  their  opinions  upon  a  known  or  hypo- 
thetical state  of  facts.  Counsel  may  put  to  the  physicians  states 
of  facts  they  think  warranted  by  the  evidence.  If  the  jury  con- 
sider any  of  these  states  of  fact  are  proved,  the  opinions  thereon 
are  admissible  evidence.^  The  defendant  is  not  entitled  to  an 
instruction  that  the  opinions  of  medical  experts  admitted  in 
evidence,  if  uncontradicted  by  other  experts,  must  be  accepted 
and  acted  on  by  the  jury  as  absolute  proof .^  The  great  weight 
of  reason  and  authority  is  against  allowing  the  statements  in 
medical  books  to  be  introduced  in  testimony ;  and  even  where  a 
State  has  passed  a  statute  permitting  such  books  to  be  read  in 
civil  and  criminal  cases  in  the  State  courts,  such  a  statute  has  no 
application  to  criminal  cases  in  the  Federal  Courts  of  such  State.^ 
On  questions  of  mental  disease,  the  jury  are  given  the  benefit 
of  the  professional  opinions  of  skilled  witnesses.^  The  opinion 
of  a  physician  as  to  a  defendant's  mental  condition,  based  in  part 
on  representations  made  to  him  by  the  defendant  or  others  prior 
to  the  trial,  cannot  be  considered  by  the  jury.^  Expert  testimony 
as  to  mental  condition  is  not  to  be  taken  in  place  of  the  jury's 
own  judgment,  but  to  be  used  by  them  for  what  they  think  it  is 
worth.''  On  an  issue  of  insanity,  the  jury  is  not  bound  by  the 
opinions  of  experts.  "  A  jury  should  not  capriciously  or  reck- 
lessly disregard  the  advice  of  medical  men  of  experience  in  dealing 
with  diseases  of  the  human  mind,  and  the  advice  of  physicians 
as  to  such  matters  should  be  carefully  weighed,  but  the  final 
responsibility  in  arriving  at  a  conclusion  as  to  the  mental  condition 
of  the  prisoner  rests  upon  the  jury."  ^  A  non-expert,  who  knew 
the  prisoner  in  a  murder  trial  before  the  killing,  may  state  his 
opinion  of  the  mental  condition  of  the  prisoner  at  that  time,  but 
not  after  the  event,  except  under  special  circumstances.^     "  It  is 

^  United  States  v.  McGlue,  1  Curt.  '  United  States  v.  Faulkner,  supra. 

1,  9  Fed.  Gas.  No.  15679.  ''  Ibid.,  at  733. 

3  United    States    v.    Perkins,    221  » United  States  v.  Chisholm,   149 

Fed.  109.  Fed.  284,  289,  153  Fed.  808. 

*  United  States  v.  Perkins,  supra.  *  Queenan   v.   Oklahoma,    190   U. 

'United   States   v.   Faulkner,   35  S.    548,  47    L.  ed.   1175,  23    S.    C. 

Fed.  730.                         '  762. 

327 


§  396]  EVIDENCE  [Chap.  XXXII 

unnecessary  to  lay  down  the  rule  that  it  never  can  be  done,  for 
instance,  when  the  opinion  clearly  appears  to  sum  up  a  series  of 
impressions  received  at  different  times.  It  is  enough  to  say  that, 
at  least,  it  should  be  done  with  caution  and  not  without  special 
reasons."  ^°  It  is  not  necessary  to  show  experience  in  special 
cases,  as  in  gunshot  wounds,  to  qualify  a  physician  and  surgeon 
to  testify  as  an  expert  relative  to  the  elevation  in  which  a  pistol 
must  have  been  held  to  inflict  a  certain  wound. ^^  The  opinion 
of  a  physician  who  had  made  a  post-mortem  examination  of  the 
deceased,  who  was  killed  by  a  blow  on  his  head,  as  to  the  direction 
from  which  the  blow  was  delivered,  was  held  admissible,  not  as 
expert  testimony  in  the  strict  sense  of  the  term,  but  as  a  state- 
ment of  a  conclusion  of  fact.^^ 

§  397.   On  Handwriting. 

Expert  opinion  as  to  the  genuineness  of  a  handwriting,  from 
mere  inspection,  "  though  generally  of  slight  weight,  and  often 
immaterial,  is  competent."  ^  The  jury  are  not  bound  by  the 
opinion  of  an  expert  witness  as  to  handwriting  further  than  it 
coincides  with  their  own  opinion,  or  than  they  think  it  deserves 
to  be  credited  with  on  account  of  his  experience.^  An  expert 
witness  who  testified  that  he  had  seen  over  four  hundred  signatures 
and  other  specimens  of  the  handwriting  of  a  defendant  charged 
with  forgery,  was  held  competent  to  state  his  opinion  that  the 
signature  alleged  to  have  been  forged  was  written  by  the  defend- 
ant.^ An  expert  handwriting  witness  may  not  be  cross-examined 
as  to  photographic  reproductions  in  his  possession  where  no  refer- 
ence has  been  made  in  his  testimony  in  chief  to  such  photographs.* 
Experts  will  not  be  allowed  to  prove  to  the  court  or  jury  what  is 
the  proper  or  legal  construction  of  any  writing.  So,  in  a  prose- 
cution for  using  the  mails  in  disposing  of  corporate  stock  by  mis- 
representations, testimony  of  experts  as  to  the  validity  of  patents 

'"  Queenan  v.  Oklahoma,  supra.  "  United  States  i;.  MoUoy,  31  Fed. 

"  Kelly  V.  United  States,  27  Fed.  19 ;    United  States  v.  Pendergast,  32 

G16,  018.  Fed.  198. 

"  Ilopt  V.  Utah,   120  U.  S.  430,  =>  Ncall  v.  United  States,  118  Fed. 

30  L.  od.  708,  7  S.  C.  614.  699,  707,  56  C.  C.  A.  31  (9th  Cir.). 

§  397.    '  Rinkcr  v.  United  States,  «  Franklin   v.    United   States,    193 

151  Fed.  755,  761,  81  C.  C.  A.  379  Fed.  334,  341,  113  C.  C.  A.  258  (3d 

(8th  Cir.).  Cir.). 
328 


Chap.  XXXII]  ON  HANDWRITING  [§  397 

held  by  the  corporation  was  inadmissible.  But  where  the  court 
tells  the  jury  to  disregard  the  legal  views  of  the  expert,  the  pre- 
sumption is  that  the  jury  will  disregard  that  incorporated  in 
the  expert  opinion.^  Non-experts,  though  having  only  a  limited  ac- 
quaintance with  a  handwriting,  who  have  seen  the  defendant  write 
and  who  express  themselves  qualified  to  give  an  opinion  on  the  sub- 
ject, are  allowed  to  examine  documents  and  testify  that  they  were 
written  by  the  defendant.  Their  limited  acquaintance  with  the 
defendant's  writing  is  held  merely  to  affect  the  weight  of  their 
opinion.*^  Seeing  a  person  write  even  once  makes  a  witness 
competent  as  a  non-expert  in  regard  to  his  signature.^  If  a 
witness  as  to  the  authorship  of  handwriting  is  an  illiterate  man, 
or  one  whose  business  seldom  brings  him  into  contact  with  writing 
and  written  documents,  his  opinion  will  be  entitled  to  much  less 
weight  than  if  he  is  an  educated  man,  even  if  in  no  sense  an  expert.* 
A  knowledge  of  the  handwriting  of  a  defendant  charged  with  for- 
gery possessed  by  a  witness  who  was  not  an  expert  in  handwriting, 
would  not,  of  itself,  qualify  him  to  testify  whether  a  forged  signa- 
ture made  in  imitation  of  the  handwriting  of  another  was  or  was 
not  written  by  the  defendant.^  The  Statute  provides :  "  In 
any  proceeding  before  a  court  or  judicial  officer  of  the  United 
States  where  the  genuineness  of  the  handwriting  of  any  person 
may  be  involved,  any  admitted  or  proved  handwriting  of  such 
person  shall  be  competent  evidence  as  a  basis  for  comparison  by 
witnesses,  or  by  the  jury,  court  or  ofiicer  conducting  such  pro- 
ceeding, to  prove  or  disprove  such  genuineness."  ^°  This  statute 
changes  the  common  law  rule,  which  did  not  permit  the  comparison 
of  handwriting  unless  that  constituting  the  standard  of  com- 
parison was  properly  in  the  case  for  other  purposes."  The 
statutes  of  States  as  to  comparison  of  writings  for  the  purpose  of 

^Menefee  v.   United  States,   236  » Neall    v.    United    States,     118. 

Fed.  826,  835,  150  C.  C.  A.  88  (9th  Fed.  699,  707,  56  C.  C.  A.  31  (9th 

Cir.).  Cir.). 

•Rinker    v.    United    States,    151  '"Act  of  Feb.  26,   1913,   ch.   79, 

Fed.  755,  760,  81  C.  C.  A.  379  (8th  27  Stat.  L.  683. 

Cir.).  "Maxey   v.    United    States,    207 

'  Murray   v.   United   States,    247  Fed.  327,  125  C.  C.  A.  77  (Sth  Cir.) ; 

Fed.  874,  160  C.  C.  A.  96  (4th  Cir.).  Short  v.  United  States,  221  Fed.  248, 

8  United    States    v.    Gleason,    37  137  C.  C.  A.  104  (Sth  Cir.). 
Fed.  331. 

329 


§  397]  EVIDENCE  [Chap.  XXXII 

determining  handwriting   never   had   any   effect   upon   criminal 
proceedings  in  the  courts  of  the  United  States.^^ 

§  398.   Cross-Examination  of  Experts. 

An  examination  in  chief  cannot  be  so  conducted  as  to  compel 
the  cross-examining  counsel  to  merely  follow  the  line  of  questions 
there  asked ;  but,  when  a  general  subject  is  opened  by  an  exam- 
ination in  chief,  the  cross-examining  counsel  may  go  fully  into 
details,  and  may  put  the  case  before  the  expert  witness  in  various 
phases.  Each  side  has  a  right  to  take  the  opinion  of  the  witness 
upon  its  theory  of  the  facts  established  by  the  evidence.  While 
it  is  true  that  a  cross-examination  must  be  confined  to  the  subject 
of  the  examination  in  chief,  it  is  not  true  that  the  cross-examining 
party  is  confined  to  any  particular  part  of  the  subject.  He  has 
a  right  in  such  a  case  as  this  to  leave  out  of  the  hypothetical 
question  facts  assumed  by  the  counsel  on  the  direct  examination, 
if  he  deems  them  not  proved,  and  he  also  has  a  right  to  add  to  the 
question  such  facts  as  he  thinks  the  evidence  establishes.^ 

§  399.  Undue  Restrictions  of  Cross-Examination  of  Expert 
Witnesses. 

Great  latitude  should  also  be  allowed  in  cross-examination,  espe- 
cially in  capital  cases,  and  the  court  should  never  interpose  except 
where  there  is  a  manifest  abuse  of  the  right. ^  In  a  well-considered 
case,^  Mr.  Justice  Scott  commented  as  follows :  "  No  medical 
books  were  read  to  the  jury  as  evidence  or  for  any  other  purpose, 
and  it  will  not  be  necessary  to  discuss  the  admissibility  of  such 
evidence.  But  on  cross-examination  of  the  attending  physician, 
who  made  a  diagnosis  of  the  disease  of  which  the  assured  died,  and 
pronounced  it  delirium  tremens,  paragraphs  from  standard  authors, 
that  treat  of  that  disease,  were  read  to  the  witness,  and  he  was 
asked  whether  he  agreed  with  the  authors,  and  that  is  complained 
of  as  error  hurtful  to  the  cause  of  defendant.     The  testimony  of 

i'^  United  States  V.  Jones,  10  Fed.  §399.   ^  Ritzman   v.    People,    110 

469;    United  States  v.   Mathias,  36  111.   362,   371;    Tracy  v.   People,   97 

Fed.  892.  111.  101,  103;    Sutton  v.  People,  119 

§  398.   '  Loui.svillc  &  N.  A.  &  Ch.  lU.  250,  251,  10  N.  E.  376. 

Ry.  Co.  t^.   Farley,   104  Ind.  409,  3  ^  Connecticut    Mutual    Life    Ins. 

N.  E.  389.  Co.  V.  EUis,  89  111.  516,  519. 
330 


Chap.  XXXII]  mode  of  transmission  [§  400 

this  witness  was  of  the  utmost  importance,  and  certainly  plaintiff 
was  entitled  to  reasonable  latitude  in  the  cross-examination.  The 
witness  had  given  the  symptoms  of  the  disease  with  which  the 
assured  was  affected  and  pronounced  it  delirium  tremens,  and,  as  a 
matter  of  right,  plaintiff  might  test  the  knowledge  possessed  by 
the  witness,  of  that  disease,  by  any  fair  means  that  promised  to 
elicit  the  truth.  It  will  be  conceded,  it  might  be  done  by  asking 
proper  and  pertinent  questions,  and  what  possible  difference  could 
it  make  whether  the  questions  were  read  out  of  a  medical  book  or 
framed  by  counsel  for  that  purpose?  Ordinarily,  the  limits  of 
cross-examination  of  a  witness  are  within  the  sound  discretion  of 
the  court,  and,  usually,  the  greatest  latitude  is  allowable  that  can 
be  consistently  given,  for  the  discovery  of  the  truth.  The  witness 
in  this  case  stated  that  he  had  read  text  books  that  he  might  be 
able  to  state  why  he  '  diagnosed  the  case  as  delirium  tremens.' 
Assuming  to  be  familiar  with  standard  works  that  treat  of  delirium 
tremens,  it  was  not  unfair  to  the  witness  to  call  his  attention  to  the 
definitions  given  in  the  books  of  that  particular  disease,  and  asking 
him  whether  he  concurred  in  the  definitions.  How  could  the 
knowledge  of  the  witness  of  such  subjects  be  more  fully  tested? 
That  is,  in  no  just  sense,  reading  books  to  the  jury  as  evidence,  or 
for  the  purpose  of  contradicting  the  witness.  The  rule  announced 
may  be  liable  to  abuse.  Great  care  should  always  be  taken  by  the 
court  to  confine  such  cross-examination  within  reasonable  limits, 
and  to  see  that  the  quotations  read  to  the  witness  are  so  fairly 
selected  as  to  present  the  author's  views  on  the  subject  of  the 
examination.  That  the  cross-examination  was  in  the  presence 
and  hearing  of  the  jury  could  not,  of  course,  be  avoided,  as  the 
witness  was  examined  in  open  court." 

PRIVILEGED    COMMUNICATIONS 

§  400.   Mode  of  Transmission. 

A  communication  is  not  privileged  merely  because  of  the 
method  of  its  transmission.  In  United  States  v.  Hunter,^  it  was 
admitted  that  the  United  States  and  the  States  have  a  right  to 
call  for  and  use  such  telegrams  as  may  be  pertinent  to  any  matter 
pending  before  their  respective  Grand  Juries  or  Courts,  in  relation 
§  400.   1  15  Fed.  712. 

331 


§  400]  EVIDENCE  [Chap.  XXXI I 

to  prosecutions  for  crimes ;  and  it  was  also  admitted  that  tele- 
grams having  no  pertinency  to  such  inquiries  are  inadmissible, 
and  ought  not  to  be  produced.  The  only  question  was  as  to  the 
proper  mode  to  require  the  production  of  those  proper  to  be  pro- 
duced and  as  to  those  which  should  be  excluded,  and  the  Court 
formulated  the  following  rule :  "  When  the  district  attorney, 
either  upon  his  own  motion  or  at  the  instance  of  the  grand  jury, 
applies  for  the  subpoena,  he  should  state  that  there  is  a  question 
either  pending  before  the  grand  jury  or  court,  as  the  case  may  be, 
in  which  certain  telegrams  sent  from  or  received  at  the  telegraph 
office  in  charge  of  the  witness  named  are  believed  to  be  pertinent 
to  the  question  to  be  considered,  and  should  state  the  names  of  the 
parties  sending  or  receiving  the  telegrams,  and  should  further 
state  the  periods  between  which,  or  the  day  upon  which,  sent 
or  received,  which  should  be  a  reasonable  time ;  or,  if  the  names 
of  the  parties  should  not  be  known,  then  the  time  should  be 
stated,  and  the  subject  matter  which  the  dispatches  are  supposed 
to  contain,  or  to  which  they  are  supposed  to  relate,  in  either  case, 
in  order  that  the  court  or  judge  ordering  the  subpoena  may  have 
some  means  of  judging  the  relevancy  of  the  testimony  sought." 

§  401.  Waiver. 

The  privilege  may  be  expressly  waived,^  and,  it  has  been  held, 
by  the  inference  arising  from  silence  or  failure  to  object  promptly.^ 
But  it  has  been  doubted  whether  waiver  should  be  implied  in 
criminal  cases. 

§  402.   Public  Officers  —  State  Secrets. 

A  communication  made  to  a  public  prosecutor,  purporting  to 
disclose  matters  concerning  a  public  offense,  is  privileged.^     By  a 

§  401.   1  United  States  v.  Lee,  107  on     Evidence,     p.     3343.     See    also 

Fed.  702,  704.  Burr's    Trial,    Robertsons'    Repr.    I, 

2  Blackburn  v.  Crawford,  3  Wall.  121,    127,   186,  255,   II.   536.     Mar- 

(U.  S.)  175,  18  L.  ed.  186.  shall's   dictum   as   to   production   of 

§402.    1  Vogel  V.   Gruaz,    110   U.  letter  by  President  to  General  Wil- 

S.  311,  28  L.  cd.   158,  4  S.  C.   12;  kinson  which   might   have   involved 

Worthington  v.  Scribner,   109  Mass.  international    relations.     The    Presi- 

487.     See   argument    against   official  dent    forwarded    the    letter    without 

privileges.     Burr's  Trial,  Robertsons'  objection.     Sec     IV.     Wigmore,     p. 

Repr.  II,  517,  quoted  IV.  Wigmore  3345,  quotation. 

332 


Chap.  XXXII]      PUBLIC   OFFICERS  —  STATE   SECRETS  [§402 

statute  of  Illinois  the  duty  of  the  State's  attorney  was  to  "  com- 
nience  and  prosecute  "  all  criminal  proceedings.  It  was  held 
that  under  this  provision  it  was  the  province  and  the  privilege 
of  any  person  who  knew  of  facts  tending  to  show  the  commission 
of  a  crime,  to  lay  these  facts  before  the  State's  attorney ;  therefore, 
public  policy  will  protect  all  such  communications,  absolutely, 
and  without  reference  to  the  motive  or  intent  of  the  informer  or 
the  question  of  probable  cause.  So  a  communication  by  a  person 
who  inquires  of  the  attorney  whether  the  facts  communicated 
made  out  a  case  of  larceny  for  a  criminal  prosecution  is  an  ab- 
solutely privileged  communication  and  cannot,  in  a  suit  against 
such  person  for  damages  for  slander,  be  testified  to  by  the  State's 
attorney.  It  made  no  diflPerence  that  there  was  evidence  of  the 
speaking  of  the  same  words  to  persons  other  than  the  State's 
attorney.^  Since  it  is  the  duty  of  every  citizen  to  communicate 
to  his  government  any  information  which  he  has  of  the  commission 
of  an  offense  against  its  laws,  a  court  of  justice  will  not  compel  or 
allow  such  information  to  be  disclosed,  either  by  the  subordinate 
officer  to  whom  it  is  given,  by  the  informer  himself,  or  by  any 
other  person,  without  the  permission  of  the  government.  The 
evidence  is  excluded,  not  for  the  protection  of  the  witness  or  of 
the  party  in  the  particular  case,  but  upon  general  grounds  of 
public  policy,  because  of  the  confidential  nature  of  such  com- 
munications.^ In  England  the  rule  has  been  long  established  in 
revenue  cases  and  prosecutions  for  high  treason,  and  has  often 
been  applied  in  civil  actions.  It  has  been  held  that  a  police  officer 
is  not  bound  to  disclose  the  name  of  the  person  from  whom  he 
received  the  information  leading  to  the  arrest  of  the  accused.'* 
But  it  is  to  be  presumed  that  if  the  disclosure  were  material  to 
the  case  it  would  be  ordered  to  be  made.^  The  conversations  of 
Government  detectives  and  other  agents  with  witnesses,  with  the 
purpose  and  effect  of  inducing  and  influencing  the  evidence  of 
such  witnesses,  do  not  rise  to  the  dignity  of  state  secrets,  and, 

*  Vogel  V.  Gruaz,   110  U.  S.  311,  (collecting  and  reviewing  the  author- 

28  L.  ed.  158,  4  S.  C.  12.  ities). 

3  Vogel  V.  Gruaz,  110  U.  S.  311,  "United  States  v.  Moses,  4  Wash. 

28  L.  ed.  158,  4  S.  C.  12 ;    Dawkins  (C.  C.)  726,  Fed.  Gas.  No.  15825. 
V.  Rokeby,  L.  R.  7  H.  L.  744 ;  Worth-  »  Reg.  v.  Richardson,   3  Fost.   & 

ington   V.   Scribner,    lt)9   Mass.   487  F.  693. 

333 


§  402]  EVIDENCE  [Chap.  XXXII 

when  a  witness  so  induced  or  influenced  appears  on  the  stand  and 
testifies,  he  may  be  cross-examined  as  to  any  and  all  inducements 
made  to  him  on  the  part  of  any  one  in  connection  with  his  evi- 
dence. It  would  be  intolerable  for  Government  agents  to  be 
allowed  to  give  inducements  to  witnesses  and  not  have  the  fact 
freely  exposed  on  the  witness  stand,  so  as  to  inform  the  court  and 
jury  as  to  the  proper  weight  of  the  evidence  given.®  The  Federal 
and  State  Governments  have  power  to  provide  that  returns  made 
to  their  officers  to  be  used  in  assessing  and  collecting  revenue  and 
taxes  shall  not  be  revealed  by  such  officers.  These  provisions 
protect  the  officers  against  commitment  for  contempt  for  refusal 
to  produce  such  returns  on  subpoena  by  a  court. ^  A  deputy 
collector  of  internal  revenue  cannot  be  compelled  to  testify,  in  a 
criminal  proceeding  in  a  State  court,  as  to  statements  made  to  him 
by  an  applicant  for  a  special  retail  liquor  dealer's  tax  stamp, 
which  statements  were  made  for  the  purpose  of  being  reduced  to 
writing  and  embodied  in  the  records  of  the  internal  revenue 
office.  To  divulge  such  statements  would  be  to  divulge  the  con- 
tents of  the  records  themselves,  which  is  forbidden  by  the  internal 
revenue  regulations.^  A  communication  on  official  affairs  by  one 
officer  to  another  is  within  the  privilege.  Public  policy  forbids  the 
maintenance  of  any  suit  in  a  court  of  justice,  the  trial  of  which 
would  inevitably  lead  to  the  disclosure  of  matters  which  the  law 
itself  regards  as  confidential,  and  respecting  which  it  will  not 
allow  the  confidence  to  be  violated.  So  it  was  held  that  an  action 
cannot  be  maintained  against  the  government,  in  the  Court  of 
Claims,  upon  a  contract  for  secret  services  during  war,  made 
between  the  President  and  the  claimant.^  The  correspondence 
between  a  district  attorney,  who  represents  the  United  States, 
and  the  attorney-general,  is  confidential  in  its  nature  and  cannot 
be  cited  by  third  persons. ^°    A  statement  by  a  person  accused  of 

•  King  V.  United  States,  112  Fed.  177  U.  S.  459,  44  L.  ed.  846,  20  S.  C. 

988,  996,  50  C.  C.  A.  647  (5th  Cir.).  701 ;  In  re  Lamberton,  124  Fed.  446; 

^  In   re   Valecia   Condensed   Milk  Stegall  v.   Thurman,    175   Fed.   813. 

Co.,  240  Fed.  310,  153  C.  C.  A.  236  Contra,  In  re  Hirsch,  74  Fed.  928. 
(7th  Cir.),  and  cases  cited  in  imme-  *' Tottcn  v.  United  States,  92  U. 

diatcly  preceding  note.  S.  105,  23  L.  ed.  605. 

8InreHuttman,70Fed.699;  Inrc  "United    States    v.    Six    Lots    of 

Weeks,  82  Fed.  729 ;  In  re  Comingore,  Ground,    1    Woods   234,    Fed.    Cas. 

96   Fed.   552 ;    Boske  v.  Comingore,  No.  16299. 
334 


Chap.  XXXII]  HUSBAND   AND    WIFE  [§  404 

murder,  made  to  the  district  attorney  prior  to  the  trial  concerning 
the  facts  and  circumstances  attending  the  death  of  the  deceased, 
was  held  not  a  privileged  communication.^^  The  Bankruptcy 
Act  does  not  deprive  a  witness  of  his  privilege  under  a  State 
statute  to  refuse  to  produce  income  tax  returns  by  the  bankrupt.^^ 

§  403.   Grand  Jurors. 

Grand  Jurors  have  been  allowed  to  testify  as  to  confessions  made 
by  the  prisoner  when  he  was  being  examined  before  them  on  oath 
as  a  witness  against  another  person.^  The  obligation  of  secrecy 
imposed  on  a  grand  juror  by  his  oath  concerning  proceedings  before 
the  grand  jury  is  not  removed  by  his  discharge  as  a  juror,  but 
continues  unless  removed  by  the  court  in  the  interest  of  justice.^ 
The  reasons  given  for  this  secrecy  in  regard  to  testimony  have  been 
criticized  by  modern  text  writers.  The  necessity  for  the  secrecy 
usually  ends  with  the  grand  jury's  finding  being  filed  with  the 
public  prosecutor, 

§404.   Husband  and  Wife. 

Privileged  communications  between  husband  and  wife  are 
protected  at  common  law.^  Whether  a  communication  between 
husband  and  wife  is  a  matter  of  confidence  is  a  question  to  be 
passed  on  in  the  first  place  by  the  presiding  judge,  and  where  the 
facts  are  clearly  doubtful  his  ruling  will  not  be  set  aside  by  an 
appellate  tribunal.^  The  rule  is  clear  that  communications 
between  husband  and  wife  are  ruled  out  only  when  they  are  con- 
fidential. On  the  trial  of  a  criminal  case,  the  testimony  was 
admitted  of  the  defendant's  divorced  wife  as  to  the  contents  of  a 
lost  paper  which  had  been  handed  to  her  by  the  defendant  while 
she  was  still  his  wife,  during  a  consultation  between  them  and 
others  relating  to  matters  out  of  which  the  prosecution  arose.  It 
did  not  appear  from  the  record  that  the  communication  was  con- 

"  Itow  v..  United  States,  223  Fed.  =  In  re  Atwell,  140  Fed.  368. 

25,  138  C.  C.  A.  439  (9th  Cir.).  §  404.    »  Hopkins     v.      Grimshaw, 

12  In  re  Valecia  Condensed  Milk  165  U.  S.  342,  41  L.  ed.    739,  17  S. 

Co.,  240  Fed.  310,  153  C.  C.  A.  236  C.  401. 

(7th  Cir.).  2  Jacobs    v.    United    States,     161 

§  403.    1  United    States    v.    Negro  Fed.  694,  698,  88  C.  C.  A.   554  (1st 

Charles,  2  Cr.  C.  C.  76,  Fed.  Cas.  No.  Cir.). 
14786 

335 


§  404]  EVIDENCE  (Chap.  XXXIl 

fidential,  or  that  the  paper  was  not  read  by  the  others  present; 
therefore,  its  admission  was  held  not  reversible  error  .^ 

§  405.   Attorney  and  Client. 

Indispensable  elements  of  a  privileged  communication  between 
attorney  and  client  are :  (1)  The  professional  relation  of  attorney 
and  client  at  the  very  time  the  communication  is  made ;  (2)  the 
making  of  the  communication  on  account  of  that  relation ;  and 
(3)  the  necessity  or  relevancy  of  the  communications  to  the  subject 
matter  of  the  attorney's  engagement,  in  order  to  enable  him  to  use 
his  ability,  skill  and  learning  in  the  discharge  of  his  office  of  attorney 
in  relation  thereto.^  Counsel  for  a  bankrupt  is  not  required, 
when  examined  as  a  witness  in  the  bankruptcy  proceedings,  to 
disclose  any  information  as  to  the  affairs  of  the  bankrupt,  which 
he  received  as  such  counsel  from  the  bankrupt  or  from  persons  to 
whom  he  was  referred  by  the  bankrupt  for  the  purpose  of  obtaining 
such  information  as  such  counsel.^  The  privilege  does  not  exist 
where  the  attorney  becomes  acquainted  with  facts  from  another 
source  than  his  client,  even  while  he  is  acting  as  an  attorney.  So  an 
attorney  is  not  entitled  to  refuse  to  identify  documents  which  he 
has  witnessed,  nor  to  testify  as  to  facts  concerning  which  he  ob- 
tained knowledge  from  third  persons.^  The  ground  upon  which 
the  rule  has  been  rested  for  more  than  a  century  is  the  vital 
importance  to  the  client  that  he  should  feel  perfectly  safe  in  dis- 
closing the  secrets  of  his  case  to  his  legal  advisor.  Protected  by 
the  privilege,  he  may  be  confident  that,  with  few  exceptions,  what- 
ever he  may  communicate  cannot  thereafter  be  used  against 
him.^  An  accused  admitted  to  bail  could  not  be  found.  On  in- 
vestigation by  the  grand  jury  it  appeared  that  his  counsel  was  not 
retained  by  the  accused,  but  by  some  person  acting  for  him,  or  in 
his  interest.  It  was  held  that  the  counsel  might  be  compelled 
to  disclose  the  name  and  residence  or  usual  place  of  abode  of  such 
person,  but  not  the  interest  such  person  had  in  the  matter.^     The 

'  Jacobs    V.    United    States,     161  ^  jj^    ^c    Aspinwall,    7    Ben.    433, 

Fed.  G94,  88  C.  C.  A.  554  (1st  Cir.).  Fed.  Cas.  No.  591. 

§  405.   >  1   Grccnl.   on  Ev.    (16th  =>  In  re  Ruos,  159  Fed.  252 ;  Beaven 

Ed.)    244 ;    Jones   on  Ev.    (2d  Ed.)  v.  Stuart,  250  Fed.  972,  —  C.  C.  A. 

751  ;     York    v.    United    States,    224  —  (5th  Cir.). 

Fed.  88,  90,   138  C.  C.  A.  356  (8th  *  In  re  Ruos,  159  Fed.  252,  256. 

Cir.),  and  many  state  cases.  *  United  States  t;.  Lee,  107  Fed.  702, 
33G 


Chap.  XXXII]  ATTORNEY   AND   CLIENT  [§  405 

relation  does  not  excuse  an  attorney  from  withholding  from  a 
proper  tribunal  evidence  bearing  upon  an  intention  or  arrangement 
on  the  part  of  the  client  to  perform  some  illegal  act  in  the  future, 
nor  the  actual  doing  of  the  act.*^  "  The  general  rule,"  said  Mr. 
Justice  Story,  in  Chirac  v.  Reinicker,^  "  is  not  disputed  that  con- 
fidential communications  between  client  and  attorney  are  not  to 
be  revealed  at  any  time.  The  privilege,  indeed,  is  not  that  of  the 
attorney,  but  of  the  client ;  and  it  is  indispensable  for  the  purposes 
of  private  justice.  Whatever  facts  are  communicated  by  a  client 
to  a  counsel  solely  on  account  of  that  relation,  such  counsel  are 
not  at  liberty,  even  if  they  wish,  to  disclose ;  and  the  law  holds  their 
testimony  incompetent."  ^  So,  statements  regarding  the  com- 
mission of  a  crime  already  committed,  made  by  the  person  com- 
mitting it  to  an  attorney  at  law  when  consulting  him  in  that 
capacity,  are  privileged  communications,  whether  a  fee  has  or  has 
not  been  paid,  and  whether  litigation  is  pending  or  not.^  The 
court  distinguished  the  case  from  Queen  v.  Cox,^°  where  the  attorney 
was  consulted  for  advice  which,  without  his  knowledge,  was 
intended  by  the  client  to  aid  in  a  scheme  to  defraud.  It  was  held 
that  in  such  a  case  the  communication  between  attorney  and 
client  was  not  privileged.  In  a  case  where  the  point  was  not 
actually  before  the  court,  the  court  said  :  "  But  it  may  be  remarked 
in  passing  that  it  has  been  held  in  England  that  a  communication 
made  in  furtherance  of  any  criminal  or  fraudulent  purpose  is  not 
privileged.  Queen  v.  Cox,  L.  R.  14  Q.  B.  D,  153.  And  the 
English  rule  appears  to  have  been  regarded  with  favor  in  the 
Supreme  Coiirt  of  the  United  States  in  Alexander  v.  United 
States,  138  U,  S.  353,  34  L.  ed.  954,  the  rule  being  limited  to  cases 
where  the  party  is  tried  for  the  crime  in  furtherance  of  which  the 
communication    was    made."  ^^     In    order    to    remove    the   pro- 

6  United  States  v.  Lee,   107  Fed.  ^  Alexander  v.  United  States,   138 

702,  703.  U.  S.  353,  34  L.  ed.  954,  11  S.  C.  350; 

m  Wheat.    (U.  S.)   280,   294,   6  followed  in  Lew  Moy  r.  United  States, 

L.  ed.  474.  237  Fed.  50,  150  C.  C.  A.  252  (8th 

*  Chirac  v.  Reinicker,   11  Wheat.  Cir.). 

(U.  S.)  280,  294,  6  L.  ed.  474;  Alex-  "  L.  R.  14  Q.  B.  D.  153. 

ander  v.   United   States,    138   U.   S.  "  Kaufman  v.  United  States,  212 

353,  358,  34  L.  ed.  954,  11  S.  C.  350;  Fed.  613,  618,  129  C.  C.  A.  149  (2d 

York  V.  United  Stat§3,  224  Fed.  88,  Cir.). 
90,  138  C.  C.  A.  356  (8th  Cir.). 

VOL.  1  —  22  337 


§  405]  EYIDENCE  '    [Chap.  XXXII 

tection  it  is  necessary  that  the  accused  be  on  trial  for  the  identical 
crime  concerning  which  the  communication  contemplating  it  was 
made  and  not  for  a  different  crime.^^  The  rule  of  the  statute  does 
not  extend  to  the  protection  of  matter  communicated  not  in  its 
nature  private  or  which  cannot  be  termed  the  subject  of  a  con- 
fidential communication.  So,  a  letter  written  by  an  attorney  to 
his  client,  advising  him  of  the  terms  of  an  injunction  granted 
against  him  in  a  suit  in  which  the  attorney  is  employed,  is  not  a 
privileged  communication,  since  it  contains  nothing  in  the  way 
of  a  confidential  disclosure,  and  it  is  admissible  in  evidence  to  show 
actual  notice  of  the  injunction  by  the  client.^^  An  accused  was 
charged  with  aiding  and  abetting  a  bankrupt  corporation,  of 
which  he  was  president  and  manager,  to  conceal  its  assets  from  its 
trustee.  It  was  held  that  evidence  of  the  accused's  attorney  that 
he  was  retained  by  the  accused  as  attorney  for  the  corporation, 
and  also  to  represent  the  accused  individually,  was  not  objection- 
able as  privileged.  It  was  necessary  for  the  witness  to  give  this 
testimony  before  the  accused  could  claim  his  privilege  as  to  com- 
munications which  passed  between  him  and  the  attorney  about 
which  he  was  asked  and  which  were  excluded  upon  the  theory  that 
they  were  privileged.^^  The  presence  of  a  third  party,  partic- 
ularly if  he  is  an  opposing  party,  indicates  that  the  communica- 
tion is  not  confidential  or  privileged.^^  Communications  made 
in  good  faith  to  an  attorney  at  law  for  the  purpose  of  obtaining  his 
professional  advice  or  assistance  are  privileged  although  no  fee 
is  paid.^'^  Nor  does  it  matter  that  after  the  communications  the 
attorney  declines  to  act.^^  There  is  some  diversity  of  opinion 
upon  this  question,  but  the  above  is  the  better  sustained  by  sound 
principle.  It  is  in  accord  with  the  common  custom  of  those  who 
seek  professional  advice.  The  man  who  goes  to  the  lawyer 
does  so  as  a  client,  and  the  lawyer  who  listens  to  him  does  so  pro- 

"  Alexander  v.  United  States,  138  Fed.  88,  91,  138  C.  C.  A.  356  (8th 

U.  S.  353,  34  L.  ed.  954,  11  S.  C.  530.  Cir.). 

'2  Aaron     v.    United    States,    155  i'  Alexander  v.  United  States,  138 

Fed.  833,  84  C.  C.  A.  67  (8th  Cir.).  U.  S.  353,  34  L.  ed.  954,  11  S.  C.  350; 

"  Kaufman  v.  United  States,  212  Lew  Moy  v.  United  States,  237  Fed. 

Fed.  613,  618,  129  C.  C.  A.  149  (2d  50,  53,  150  C.  C.  A.  252  (8th  Cir.). 
Cir.).  1'  Lew  Moy  v.  United  States,  237 

"  1    Greenl.    on   Ev.    (16th   Ed.)  Fed.  50,  53,  150  C.  C.  A.  252  (8th 

246;     York    v.    United    States,    224  Cir.). 
338 


Chap.  XXXII]  PHYSICIAN   AND   PATIENT  [§  406 

fessionally.  The  communications  preliminary  to  actual  retainer 
or  engagement  are  frequently  necessary  and  they  should  be  un- 
restrained and  without  apprehension  of  disclosure.  That  this 
should  be  so  is  of  public  interest,  and  is  essential  to  the  intelligent 
and  honorable  practice  of  the  law.  Various  obstacles  to  a  definite 
contractual  relation  may  appear  from  the  communications,  — 
prior  inconsistent  duty  to  others,  ethical  professional  standards, 
time  and  opportunity,  disagreement  as  to  compensation,  and  so 
on,  but  generally  the  preliminary  conference  must  be  had,  and  the 
disclosures  made  are  within  the  spirit  of  the  immunity.  The  fair 
and  reasonable  operation  of  the  admitted  general  rule  requires 
that  liberality  of  construction.^^  An  accused  who,  with  others, 
was  charged  with  conspiring  to  bring  or  cause  to  be  brought  into 
the  United  States  from  Mexico  Chinese  persons  not  authorized 
to  enter,  lived  in  a  State  distant  from  the  place  of  trial,  and,  shortly 
before  trial,  at  the  suggestion  of  a  codefendant,  consulted  the 
attorney  representing  his  codefendant  for  the  purpose  of  employ- 
ing him  as  local  counsel.  The  accused  made  communications 
to  this  attorney  relative  to  the  charge,  but  after  conversations 
the  attorney  declined  to  act.  It  was  held  that,  notwithstanding 
his  declinature  and  the  fact  that  no  fee  was  paid,  the  communica- 
tions were  privileged,  and  it  was  error  to  require  the  attorney  to 
disclose  them.  The  rule  was  not  changed  by  the  fact  that  the 
accused's  codefendant  afterwards  pleaded  guilty  on  the  advice 
of  such  attorney .^^  Although  a  letter  from  a  client  to  an  attorney 
may  be  a  privileged  communication,  it  appears  that  the  defendant 
may  be  asked  if  the  signature  to  the  letter  shown  him  is  his.^" 

§  406.   Physician  and  Patient. 

At  common  law  communications  to  physicians  were  not  privi- 
leged, and  in  the  absence  of  a  statute  are  accordingly  not  privi- 
leged in  the  Federal  Courts.  INIany  States  have  passed  statutes 
providing  that  physicians  or  surgeons  shall  not  be  allowed  to  dis- 
close information  acquired  while  attending  a  patient  in  a  pro- 
fessional capacity,  and  which  was  necessary  to  enable  him  to  act 

"  Lew  Moy  v.  United  States,  237      Fed.    50,    150    C.    C.    A.    252    (8th 
Fed.  50,  53,  150  C.  C.  A.  252  (8th      Cu-.). 
Cir.).  .  20  Clark    v.    United    States,    245 

"  Lew  Moy  v.  United  States,  237      Fed.  112,  157  C.  C.  A.  408  (9th  Cir.). 

339 


§  406]  EVIDENCE  [Chap.  XXXII 

in  that  capacity.     Tliese  State  statutes  would  not  be  binding 
on  the  Federal  Courts  in  criminal  cases. 


HEARSAY    EVIDENCE 

§  407.  General  Rule. 

The  general  rule,  subject  to  certain  well-established  exceptions 
as  old  as  the  rule  itself,  applicable  in  civil  cases,  and  therefore  to 
be  rigidly  enforced  where  life  or  liberty  are  at  stake,  is  that  hear- 
say evidence  is  incompetent  to  establish  any  specific  fact,  which 
fact  is  in  its  nature  susceptible  of  being  proved  by  witnesses  who 
speak  from  their  own  knowledge.  Its  intrinsic  weakness,  its 
incompetency  to  satisfy  the  mind  of  the  existence  of  the  fact, 
and  the  frauds  which  might  be  practiced  under  its  cover,  combine 
to  support  the  rule  that  hearsay  evidence  is  inadmissible.^  Hear- 
say evidence,  with  a  few  well-recognized  exceptions,  is  excluded 
by  courts  that  adhere  to  the  principles  of  the  common  law.  The 
chief  grounds  of  its  exclusion  are  that  the  reported  declaration 
(if  in  fact  made)  is  without  the  sanction  of  an  oath,  with  no  respon- 
sibility on  the  part  of  the  declarant  for  error  or  falsification, 
without  opportunity  for  the  court,  jury  or  parties  to  observe  the 
demeanor  and  temperament  of  the  witness,  and  to  search  his 
motives  and  test  his  accuracy  and  veracity  by  cross-examination, 
these  being  most  important  safeguards  of  the  truth,  where  a  wit- 
ness testifies  in  person,  and  as  of  his  own  knowledge ;  and,  more- 
over, he  who  swears  in  court  to  the  extrajudicial  declaration  does 
so  (especially  where  the  alleged  declarant  is  dead)  free  from  the 
embarrassment  of  present  contradiction  and  with  little  or  no 
danger  of  successful  prosecution  for  perjury.  It  is  commonly 
recognized  that  this  double  relaxation  of  the  ordinary  safeguards 
must  very  greatly  multiply  the  probabilities  of  error ;  and  that 
hearsay  evidence  is  an  unsafe  reliance  in  a  court  of  justice.^ 
The  rule  extends  to  written  as  well  as  to  oral  statements.^  One  of 
the  exceptions  to  the  rule  excluding  it  is  that  which  permits  the 

§  407.   1  Ilopt    V.    Utah,    110    U.  U.  S.  243,  273,  57  L.  ed.  820,  33  S. 

S.  574,  28  L.  c.d.  262,  4  S.  C.  202 ;  C.  449. 

IliiuKher  V.  United  States,  173  Fed.  =•  Todd  v.  United  States,  221  Fed. 

54,  97  C.  C.  A.  372  (4th  Cir.).  205,  136  C.  C.  A.  615  (8th  Cir.). 

2  Donnelly  t;.   United  States,  228 
340 


Chap.  XXXII]  DYING   DECLARATIONS  [§  408 

reception,  under  certain  circumstances,  and  for  limited  purposes,  of 
declarations  of  third  parties  made  contrary  to  their  own  interest ; 
but  it  is  almost  universally  held  that  this  must  be  an  interest  of  a 
pecuniary  character;  and  the  fact  that  the  declaration,  alleged 
to  have  been  thus  extrajudicially  made,  would  probably  subject 
the  declarant  to  a  criminal  liability  is  held  not  to  be  sufficient  to 
constitute  it  an  exception  to  the  rule  against  hearsay  evidence.^ 
Testimony  of  the  prosecuting  witness  as  to  what  a  third  per- 
son told  her  regarding  the  defendant,  was  held  to  be  hearsay  and 
incompetent.^  Likewise  self-serving  declarations  are  as  a  rule  in- 
admissible.^ 

§  408.  Dying  Declarations. 

Dying  declarations  are  a  marked  exception  to  the  general  rule 
that  hearsay  testimony  is  not  admissible,  and  are  received  from  the 
necessities  of  the  case  and  to  prevent  an  entire  failure  of  justice, 
as  it  frequently  happens  that  no  other  witnesses  to  the  homicide 
are  present.^  Dying  declarations  are  limited  to  criminal  prose- 
cutions, where  the  subject  matter  of  the  investigation  is  the  death 
of  the  declarant.^  They  are  admissible  on  a  trial  for  murder  as 
to  the  fact  of  the  homicide  and  the  person  by  whom  it  was  com- 
mitted in  favor  of  the  defendant  as  well  as  against  him.^  Such 
declarations  are  limited  to  facts,  and  will  not  be  admitted  as  to 
opinions,  such  as  of  the  accused's  motives  or  malice.^     To  render 

*  Donnelly  v.  United  States,  228  Fed.  401,  120  C.  C.  A.  575  (9th  Cir.) ; 

U.  S.  243,  273,  57  L.  ed.  820,  33  S.  Fields  v.  United  States,  221  Fed.  242, 

C.   449;    Berkley   Peerage   Case,   4  137  C.  C.  A.  98  (4th  Cir.). 

Camp.   401 ;    Sussex   Peerage   Case,  §  408.   ^  Carver  v.  United  States, 

11  CI.  &  Fin.  85,  103,  109,  8  Eng.  164  U.  S.  694,  41  L.  ed.  602,  17  S.C. 

Reprint.  1034,  1042.  228 ;    Mattox  v.  United  States,   146 

s  Safford    i;.    United    States,    233  U.  S.  140,  36  L.  ed.  917,  13  S.  C.  50  ; 

Fed.  495,  147  C.  C.  A.  381  (2d  Cir.) ;  S.  C.  156  U.  S.  237,  39  L.  ed.  409,  15 

Todd   V.    United    States,    221    Fed.  S.  C.  337. 

205,   136  C.  C.   A.  615   (8th  Cir.);  « United    States    v.    McGurk,     1 

Stewartv.UnitedStates,  211  Fed.  41,  Cr.  C.  C.  71,  Fed.  Cas.  No.  15680; 

127  C.  C.  A.  477  (9th  Cir.) ;   United  Reg.  v.  Hind,  8  Cox  Cr.  C.  300. 

States  V.  Barker,  4  Wash.  C.  C.  464,  »  Mattox    v.    United    States,    146 

Fed.  Cas.  No.  14520  ;  United  States  v.  U.  S.  140,  36  L.  ed.  917,  13  S.  C.  50 ; 

Jourdine,  4  Cr.  C.  C.  338,  Fed.  Cas.  Kirby  v.  United  States,   174  U.   S. 

No.  15499  ;  United  States  v.  Nailor,  4  47,  43  L.  ed.  808,  19  S.  C.  574. 

Cr.  C.  C.  372,  Fed.  Cas.  No.  15853.  *i  '  United  States  v.  Veitch,   1   Cr. 

6  Thomson  v.   United  States,  242  C.  C.  115,  Fed.  Cas.  No.  16614. 

341 


§  408]  EVIDENCE  [Chap.  XXXII 

the  declarations  admissible,  it  must  be  shown  by  the  party  offering 
them  in  evidence  that  they  were  made  under  a  sense  of  impending 
death. *"  The  utmost  caution  is  exercised  by  the  trial  court  to  see 
that  it  is  established  that  they  were  made  under  the  impression 
of  almost  immediate  dissolution.^  In  this  particular  the  require- 
ment of  the  law  is  very  stringent.^  It  has  been  held  that  a 
declaration  is  admissible  if  made  while  hope  lingers,  if  it  is  after- 
wards ratified  when  hope  is  gone,  or  if  made  when  the  person  is 
without  hope,  though  afterwards  he  regains  confidence.  But  the 
repetition  of  a  dying  declaration  cannot  itself  be  admitted  as  a 
reiteration  of  the  alleged  facts  if  made  when  hope  has  been  re- 
gained.^ The  fact  that  the  deceased  has  received  extreme  unction 
may  be  proved  to  show  that  she  must  have  known  she  was  in 
articulo  mortis.^  It  is  not  essential  to  the  admission  of  the  dec- 
laration that  death  should  have  actually  ensued  immediately,^*^ 
though  the  time  elapsing  between  the  making  of  the  declaration 
and  the  death  is  one  of  the  elements  to  be  considered.^^  Dying 
declarations  may  be  contradicted  in  the  same  manner  as  other 
testimony .^^  Evidence  of  other  statements  by  the  deceased  in- 
consistent with  his  dying  declarations  may  be  received,  in  im- 
peachment,^^ and  may  be  discredited  by  proof  that  the  deceased's 
character  was  bad,  or  that  he  did  not  believe  in  a  future  state  of 
rewards  or  punishment.^*  The  defendant  is  entitled  to  have  all 
the  declaration  put  in  evidence.^^ 

5  Mattox    V.    United    States,    146  "  Carver    v.    United    States,    160 

U.  S.  140,  36  L.  ed.  917,   13  S.  C.  U.  S.  553,  40  L.  ed.  532,  16  S.  C.  388 ; 

50 ;  Kelly  v.  United  States,  27  Fed.  Mattox  v.  United  States,  146  U.  S. 

616.  140,  36  L.  ed.  917,  13  S.  C.  50. 

« Carver    v.    United    States,    160  "  Mattox   v.    United   States,    146 

U.  S.  553,  40  L.  ed.  532,  16  S.  C.  388.  U.  S.  140,  36  L:  ed.  917,  13  S.  C.  50. 

^  Carver    i;.    United    States,    164  '■^  Carver    v.    United    States,    164 

U.  S.  694,  41  L.  ed.  602,  17  S.  C.  228;  U.  S.  694,  41  L.  ed.  602,  17  S.   C. 

Mattox  ;;.  United  States,  146  U.  S.  228. 

140,  36  L.  ed.  917,  13  S.  C.  50 ;  United  i^  Carver    v.    United    States,    164 

States  V.  Woods,  4  Cr.  C.   C.  484,  U.  S.  694,  41  L.  ed.  602,   17  S.   C. 

Fed.  Cas.  No.  16760.  228. 

*  Carver    v.    United    States,    160  "  Carver    v.    United    States,    164 

U.  S.  553,  555,  40  L.  ed.  532,  16  S.  C.  U.  S.  694,  41  L.  ed.  602,   17  S.  C. 

388.  228. 

"Carver    v.    United    States,    164  "Mattox   v.    United   States,    146 

U.  S.  694,  41  L.  ed.  602,  17  S.  C.  228.  U.  S.  140,  36  L.  ed.  917,  13  S.  C.  60. 
342 


Chap.  XXXII]  APPLICATIONS  OF  THE  RULE  [§  410 

BEST  AND    SECONDARY    EVIDENCE 

§  409.   Definition  and  General  Rule. 

Primary  evidence,  or  as  it  is  more  properly  termed,  the  best 
evidence,  is  that  kind  of  evidence  which  insures  the  greatest 
certainty  of  the  fact  in  issue.  Secondary  evidence  is  that  which 
shows  that  better  evidence  of  the  fact  in  issue  presumably  exists. 
Evidence  which  does  not  show  on  its  face  that  better  may  be 
forthcoming  is  not  secondary,  but  primary.  The  rule  requiring 
the  production  of  the  best  evidence  of  which  the  case  is  susceptible 
only  excludes  that  evidence  which  indicates  the  existence  of  more 
original  sources  of  information,  and  is  confined  to  cases  where  there 
exists,  or  is  presumed  to  exist,  primary  as  well  as  secondary 
evidence.^ 

§  410.   Applications  of  the  Rule. 

Where  the  originals  or  letter  press  copies  of  letters  are  in  the 
possession  of  the  defendant  in  a  criminal  proceeding,  and  the 
defendant  fails  to  produce  them  and  cannot  be  compelled  to  do  so, 
the  door  is  open  for  secondary  evidence  of  their  contents.  Of 
course,  whether  such  letters  ever  were  written,  and  what,  if 
written,  they  contained,  present  a  question  of  fact  depending  on 
the  credibility  of  the  witness,  and  that  question  of  fact  is  for  the 
consideration  of  the  jury,  and  not  for  the  determination  of  the 
court.^  Since  a  defendant  cannot  be  compelled  to  produce  an 
original  document  of  a  highly  criminal  character,  neither  notice 
nor  demand  to  produce  it  is  necessary  as  a  foundation  for  the 
introduction  of  secondary  evidence  of  any  document  which  the 
evidence  may  show  is  in  his  possession  or  under  his  control.^ 
A  tracing  made  by  a  government  inspector  of  entries  in  a  hotel 
register  before  the  removal  of  the  leaf  by  some  person  unknown, 
and  shown  to  be  an  accurate  representation  of  the  signatures, 
was  held  admissible  as  secondary  evidence  in  a  prosecution  for 
breaking  into  a  post  office  in  the  vicinity.^ 

§  409.   1  United  States  Sugar  Re-  ^  McKnight     v.     United     States, 

finery  v.  E.  P.  Allis  Co.,  56  Fed.  786,  122  Fed.  926,  929,  61  C.  C.  A.  112 

6  C.  C.  A.  121  (7th  Cir.).  (6th  Cir.). 

§  410.    1  Dunbar  v.  United  States,  '  Considine  v.  United  States,  112 

156  U.  S.  185,  196,  29  L.  ed.  390,  Fed.   342,    50    C.    C.   A.   272    (6th 

15  S.  C.  325.  Cir.). 

343 


I  411]  EVIDENCE  [Chap.  XXXII 

§  411.   Public  Records  and  Books  of  Account. 

Where  records  required  by  law  to  be  kept  are  present  in  court, 
though  not  produced,  abstracts  made  by  a  witness  therefrom, 
giving  the  pertinent  facts,  may  be  introduced.^  It  is  proper  for 
an  expert  accountant  to  give  a  summary  of  books  and  documents, 
where  the  items  are  multifarious  and  voluminous,  and  of  a  char- 
acter to  render  it  difficult  for  the  jury  to  comprehend  material 
facts  without  the  aid  of  such  statement.  But  the  true  rule  is 
held  to  be  that,  before  such  expert  testimony  may  be  given,  the 
books  or  documents  must  be  public  records,  or  if  they  are  private 
books  of  account  or  documents,  that  sufficient  evidence  must 
first  be  given  to  admit  the  books  or  documents  themselves  in 
evidence,  unless  the  books  or  documents  are  admitted  to  be 
correct.  Otherwise,  items  in  books  of  account  might  be  given  in 
evidence  through  the  testimony  of  an  expert  accountant  when  the 
account  books  themselves  would  not  be  admissible.  This  would 
be  wrong  in  principle  and  dangerous  in  practice.^  So,  where  the 
books  of  account  of  a  bank  are  in  court  and  subject  to  inspection 
by  counsel,  a  witness  who  is  familiar  therewith  may  summarize 
their  contents  in  his  testimonJ^^  The  admission  in  evidence  of 
books  of  account  of  private  parties  constitutes  one  of  the  exceptions 
to  the  rule  of  evidence  which  excludes  hearsay  testimony.  This 
exception  was  born  of  necessity,  and  the  courts  have  always 
required,  in  the  absence  of  statutory  provision,  that  before  private 
books  of  account  can  be  admitted  in  evidence,  over  the  objection 
of  the  opposing  party,  some  evidence  must  be  introduced  as  to  their 
trustworthiness.  The  mere  fact  that  the  laws  of  the  United  States 
make  it  a  crime  to  make  false  entries  in  the  books  of  a  national 
bank  does  not  make  the  books  prima  facie  evidence  of  their  con- 
tents, simply  on  their  being  identified  as  bank  books,  but  their 
admissibility  is  determined  by  the  rule  governing  the  admission 
of  entries  in  private  books  of  account."*     Papers  used  in  a  naval 

§  411.   1  Hart    v.    United    States,  *  Phillips    v.    United    States,    201 

183  Fed.  3G8,  105  C.  C.  A.  588  (6th  Fed.  259,  120  C.  C.  A.  149  (8th  Cir.) ; 

Cir.).  Bacon    v.    United    States,    97    Fed. 

2  Phillips  V.  United  States,  201  Fed.  35,  38  C.  C.  A.  37  (8th  Cir.) ;  Chaffee 
259,  209,  120  C.  C.  A.  149  (8th  Cir.).  v.   United  States,    18  Wall.    (U.   S.) 

3  Lcnnon    v.    United    States,    164  516,  21  L.  ed.  908. 
Fed.  953,  90  C.  C.  A.  617  (8th  Cir.). 

344 


Chap.  XXXII]  LETTERS    AND    TELEGRAMS  [§  412 

court-martial  are  official  documents  and    authenticated    copies 
thereof  are  admissible  in  evidence  the  same  as  the  originals.^ 

§  412.  Letters  and  Telegrams. 

Secondary  evidence  of  letters,  telegrams  and  correspondence  in 
general  is  never  admissible  until  the  non-production  of  the  originals 
is  explained.  Proof  of  the  fact  that  the  State  court's  receiver, 
after  subpoena  by  the  Government  for  the  production  of  certain 
books  in  his  hands,  fails  and  refuses  to  produce  the  books,  con- 
stitutes a  sufficient  foundation  for  the  introduction  of  secondary 
evidence  of  their  contents,  if  material.^  On  a  trial  under  Section  215 
proved  copies  of  letters  mailed  to  the  accused  are  admissible  with- 
out otherwise  accounting  for  the  absence  of  the  originals.^  The 
contents  of  telegrams  are  proved  either  by  primary  or  secondary 
evidence.  Primary  evidence  is  the  original  telegram  itself  or  the 
admissions  of  the  sender.  Secondary  evidence  of  a  telegram  may 
consist  of  a  copy  proved  to  be  correct  or  an  oral  account  of  the 
contents  by  one  who  has  seen  it  and  knows  its  contents.  Before 
secondary  evidence,  however,  may  be  received,  the  absence  of  the 
primary  evidence  must,  of  course,  be  satisfactorily  accounted  for. 
In  the  practical  application  of  this  rule,  for  the  proof  of  the  con- 
tents of  telegrams,  it  must  first  be  determined  which  is  the  original, 
the  message  sent  or  the  one  received.  This,  as  a  general  rule,  is 
determined  by  ascertaining  whether  the  contents  of  the  telegram 
sent  or  those  of  the  one  received  are  in  issue.^  Applying  this  rule, 
it  was  held  that  where  the  Government  sought  to  prove  a  telegram 
alleged  to  have  been  sent  by  the  accused  as  an  incriminating  cir- 
cumstance, the  message  filed  at  the  sending  office  would  be  the 
original,  and  proof  of  its  loss  or  destruction  was  required  before 
secondary  evidence  of  its  contents  was  admissible.^  Where  there 
was  evidence  that  a  cipher  telegram  came  into  the  defendant's 

6  Cohn  V.  United  States,  258  Fed.  Knight  v.  United  States,   122  Fed. 

355,  —  C.  C.  A.  —  (2d  Cir.).  926,  61  C.  C.  A.  112  (6th  Cir.). 

§  412.   1  Foster  v.  United  States,  *  Montgomery   v.    United   States, 

178  Fed.  165,  175,  101  C.  C.  A.  485  219  Fed.  162,  164,  135  C.  C.  A.  60 

(6th  Cir.).  (8th   Cir.) ;    Reg.  v.   Regan,  16  Cox 

2  Watiington  v.  United  States,  233  Cr.  C.  203  ;  United  States  v.  Babcock, 

Fed.  247,  147  C.  C.  A.  253  (8th  Cir.) ;  3  Dill.  571,  Fed.  Cas.  No.  14485. 
Trent  v.  United  States,  228  Fed.  648,  *  Montgomery  v.  United  States,  219 

143  C.  C.  A.  170  (Sth^Cir.) ;    Mc-  Fed.  162,  135  C.  C.  A.  60  (8th  Cir.). 

345 


§  412]  EVIDENCE  [Chap.  XXXII 

possession,  secondary  evidence  of  its  contents  was  properly  re- 
ceived (a  reply  telegram).'' 

DEMONSTRATIVE    EVIDENCE 

§413.   Generally. 

Demonstrative  evidence,  such  as  of  counterfeit  coins,  tools, 
implements,  weapons,  etc.  is  not  admissible  against  a  defendant  if 
there  is  nothing  to  show  the  connection  of  the  defendant  there- 
with, or  their  connection  with  the  crime  charged.^  On  a  trial  for 
burglary,  weapons  and  implements  found  in  the  defendant's 
possession  when  arrested,  eighteen  days  after  the  burglary  and 
nineteen  miles  distant,  were  not  admissible  where  there  was 
nothing  to  connect  the  possession  or  employment  of  these  articles 
with  the  burglary.^  In  the  multiplication  of  reported  cases  touch- 
ing the  evidential  effect  of  the  possession  by  the  accused  of  imple- 
ments and  materials  adaptable  to  the  commission  of  the  crime  in 
question,  it  will  be  found  that  some  courts  have  admitted  such 
facts  for  the  consideration  of  the  jury  when  such  possession  was 
more  or  less  remote  from  the  time  and  locus  of  the  crime;  but 
their  admissibility  depended  upon  their  being  connected  up  with 
or  traced  to  the  res  gestce.  If  articles  found  on  the  defendant  had 
been  traced  to  his  possession  prior  to  the  burglary  or  theft,  and 
there  had  been  any  evidence  tending  to  show  the  presence  of  the 
defendant  about  the  premises  near  to  the  time  of  the  trespass, 
and  the  like,  the  jury  might  have  been  advised  that  such  posses- 
sion of  articles  and  implements,  if  the  evidence  tended  to  show 
that  they  were  probably  used  in  executing  the  crime,  was  a 
circumstance  for  their  consideration.  But  the  mere  possession, 
eighteen  days  after  the  crime  and  nineteen  miles  distant  from  the 
locus,  without  any  proof  of  the  presence  of  the  defendant  in  the 
locality,  or  the  employment  of  such  articles  in  the  commission 
of  the  crime,  was  not  evidence  of  the  defendant's  complicity,  nor 
was  it  evidence  "  that  they  were  going  to  commit  some  other 
crime."    The  ability  to  commit  a  crime  does  not  evidence  the 

"i  Heinze    v.    United    States,    181  168  Fed.  785,  94  C.  C.  A.  181  (8th 

Fed.  322,  104  C.  C.  A.  510  (2d  Cir.).  Cir.). 

§  413.    '  IlauKh  v.  United  States,  ^  Sorenson  v.   United  States,    168 

173  Fed.  54,  97  C.  C.  A.  372  (4th  Fed.    785,    94    C.    C.    A.    181    (8th 

Cir.);     Soren.son    v.    United    States,  Cir.). 

346 


Chap.  XXXII]  VARIANCE — GENERALLY  [§415 

act.'  On  a  trial  for  murder  the  picture  of  the  murdered  man  is 
admissible  on  the  question  of  identity  if  for  no  other  reason.* 
The  existence  of  blood  stains  at  or  near  a  place  where  violence  has 
been  inflicted  is  always  relevant  and  admissible  in  evidence.^ 
In  a  prosecution  for  counterfeiting,  it  was  held  that  permitting  a 
plating  machine  taken  from  the  defendants  to  be  operated  before 
the  jury  to  demonstrate  that  coins  could  be  plated  with  it  such  as 
the  defendants  made  and  uttered  was  not  error.^ 

§  414.   Experiments  in  Court. 

The  granting  or  refusing  to  make  experiments  in  the  presence 
of  the  jury  seems  to  be  within  the  sound  discretion  of  the  Court 
and  a  refusal  of  same  will  ordinarily  not  be  reviewed  on  writ  of 
error. ^  All  experiments  before  the  jury  to  demonstrate  certain 
facts  must  be  done  in  open  court  and  in  the  presence  of  the  defend- 
ant. An  instruction  that  a  jury  may  make  certain  experiments 
in  the  jury  room  was  held  to  be  erroneous.^ 

§  415.   Variance  —  Generally. 

The  evidence  and  pleadings  must  be  substantially  to  the  same 
effect  in  criminal  as  well  as  in  civil  proceedings.^  The  allegations 
and  proofs  must  correspond  in  a  criminal  case,  and  proofs  without 
allegations  are  as  ineffectual  as  allegations  without  proofs.^  The 
controlling  consideration  is  whether  the  charge  was  fairly  and 
fully  enough  stated  to  apprise  defendant  of  what  he  must  meet, 
and  to  protect  him  against  another  prosecution,  and  whether  those 
particulars  in  which  the  proof  may  differ  in  form  from  the  charge 
support  the  conclusion  that  the  defendant  could  have  been  misled 

'  Sorenson  v.  United  States,   168  §  415.   '  United    States   v.    Keen, 

Fed.  785,  94  C.  C.  A.  181  (8th  Cir.).  26  Fed.  Cas.  No.  15510. 

'  Wilson    V.    United    States,    162  ^  Brown  v.  People,  173  111.  34,  37, 

U.  S.  613,  40  L.  ed.  1090,  16  S.  C.  895.  50   N.   E.    10.6 ;    Rabens   v.   United 

6  Wilson    V.    United    States,    162  States,  146  Fed.  978,  77  C.  C.  A.  224 

U.  S.  613,  620,  40  L.  ed.  1090,  16  (4th   Cir.) ;    United  States  v.   Lan- 

S.  C.  895.  caster,  44  Fed.  896 ;    United  States 

«  Taylor  v.  United  States,  89  Fed.  v.  Newton,  52  Fed.  275 ;    Regina  v. 

954,  32  C.  C.  A.  449  (9th  Cir.).  Steel,  2  Moody's  Crown  Cases  Re- 

§  414.   1  BaU  V.  United  States,  163  served,  246,  41  E.  C.  L.  187 ;    Rex 

U.  S.  662,  41  L.  ed.  300,  16  S.  C.  1192.  v.  Hamilton,  7  C.  &  P.  448,  32  C.  C. 

2  Wilson    V.    United  ^States,    116  L.    701;     Marvin  v.   United  States, 

Fed.  484,  53  C.  C.  A.  652  (9th  Cir.).  167  Fed.  951,  93  C.  C.  A.  351. 

347 


§  415]  EVIDENCE  [Chap.  XXXII 

to  his  injury.^  To  try  a  person  for  a  different  offense  than  the  one 
charged  in  the  indictment  or  information  would  seem  on  principle 
to  be  in  violation  of  the  Fifth  and  Sixth  Amendments  of  the  Con- 
stitution of  the  United  States,  both  amendments  being  intended 
to  afford  the  defendant  an  opportunity  to  meet  the  charges  against 
him  and  to  apprise  him  of  the  nature  of  the  accusation  which  he 
will  be  called  upon  to  meet  at  the  trial. 

§  416.  Instances  of  Variance. 

It  is  not  a  fatal  variance  that  the  offense  was  charged  as  to  two 
persons  and  proved  only  as  to  one.^  Where  the  indictment  alleged 
that  the  grand  jurors  were  ignorant  of  a  more  particular  descrip- 
tion than  that  given  in  the  indictment,  it  is  a  variance  if  the 
prosecution  does  not  satisfy  them  as  to  that  fact.^  The  great 
weight  of  authority  is  to  the  effect  that  an  indictment  in  a 
forgery  case  is  fatally  defective  for  variance  between  the  sig- 
nature of  the  original  instrument  and  that  appearing  in  the 
instrument  set  out  in  the  indictment.^  Time  and  place,  when 
they  are  of  the  essence  of  the  crime  charged,  must  be  proved  or 
there  is  a  fatal  variance.^  "  Max  "  and  "  Matt  "  are  not  idem 
sonans  and  a  conviction  was  reversed  for  variance  between  the 
indictment  and  the  proof  in  these  two  names.^ 

§  417.   Second  Trial. 

The  granting  of  a  new  trial  wipes  out  the  previous  verdict  and 
judgment,  and  the  case  proceeds  anew.^    The  second  trial  must 

3  Harrison  v.  United  States,   200  56  Kan.  217,  42  Pac.  714;    State  v. 

Fed.  662,  119  C.  C.  A.  78  (6th  Cir.) ;  Twitty,  9  N.  C.  248;   Agee  v.  State, 

Sutton  V.  People,  145  111.  279,  34  N.  113  Alab.  52,  21  So.  207. 

E.  420.  "  United  States  v.  Groff,  Fed.  Cas. 

§  416.   1  Bennett  v.  United  States,  No.    15244 ;     People   v.    Bevans,    52 

194  Fed.  630,  114  C.  C.  A.  402  (6th  Cal.  470;  Rice  v.  People,  38  111.  435; 

Cir.),  affirmed  in  227  U.  S.  333,  57  Bromley  v.  People,   150  111.  297,  37 

L.  ed.  531,  33  S.  C.  288;    Common-  N.  E.  209. 

wealth   V.    Billings,    167    Mass.    283,  » Vincendeau   v.    People,    219   111. 

45  N.  E.  910.  474. 

^  Feener    v.    United    States,    249  §  417.    i  Nohrden  v.  Northeastern 

Fed.  425,  161  C.  C.  A.  399  (1st  Cir.) ;  R.  R.  Co.,  59  S.  Car.  87,  37  S.  E.  228 ; 

White  V.  People,  32  N.  Y.  465.  Kilpatrick  v.  Grand  Trunk  Ry.  Co., 

3  United    States    v.    Smith,    Fed.  74  Vt.  288,  52  Atl.  531. 
Cas.  No.  16326 ;   State  v.  Woodrow, 
348 


Chap.  XXXII]  SECOND  TRIAL  [§  417 

be  conducted  as  if  there  had  been  no  previous  trial.^  Incompetent 
evidence  received  at  the  first  trial  cannot  be  received  on  the  second 
trial. ^  And  it  is  improper  to  refer  to  the  defendant's  previous 
conviction."^ 

2  Nohrden  v.  Northeastern  R.  R.  U.  S.  509,  54  L.  ed.  861,  30  S.  C.  588 ; 

Co.,  59  S.  Car.  87,  37  S.  E.  228.  Ogden  v.   United   States,    112   Fed. 

»  Nohrden  v.  Northeastern  R.  R.  523,  50  C.  C.  A.  380  (3d  Cir.) ;  Mat- 
Co.,  59  S.  Car.  87,  37  S.  E.  228.  tox  v.  United  States,  156  U.  S.  237, 

*  Holmgren  v.  United  States,  217  39  L.  ed.  409,  15  S.  C.  337. 


349 


CHAPTER  XXXIII 
MOTION  FOR  A  DIRECTED  VERDICT 

§  418.  Scope  of  the  Motion. 

§  419.  Court  Cannot  Direct  a  Verdict  of  Guilty. 

§  420.  Application  of  Theory  of  Innocence  on  Motion  to  Direct. 

§  421.  Saving  Questions  for  Review. 

§  422.  Waiver  by  Introducing  Evidence  —  When  Not  a  Waiver. 

§  418.   Scope  of  the  Motion. 

It  is  unusual  to  question  the  sufficiency  of  an  indictment  by  a 
motion  for  a  directed  verdict.  The  court,  however,  will  grant  the 
motion  if  it  appears  that  the  indictment  is  so  defective  that  it  will  be 
fatal  on  a  motion  in  arrest  of  judgment.^  On  a  motion  to  direct  a 
verdict  for  the  defendant  the  question  is  whether  there  is  any 
competent  evidence  in  the  record  justifying  the  court  to  submit 
the  case  to  the  jury.^  When  by  the  opening  statement  in  a  criminal 
case  a  fact  is  deliberately  admitted  by  the  prosecution  which  must 
necessarily  prevent  a  conviction,  the  trial  court  may,  on  its 
own  initiative  or  upon  motion  of  the  defendant's  counsel,  close 
the  case  by  directing  a  verdict  for  the  accused.^  At  the  close  of 
the  evidence  in  every  trial  by  jury  a  duty  rests  on  the  court  to 
decide  whether  or  no  any  substantial  evidence  has  been  adduced 
to  sustain  the  claim  of  the  plaintiff.  If  this  question  is  decided 
negatively,  the  trial  court  is  bound  to  direct  a  verdict  for  the 
defendant.  This  rule  is  laid  down  by  Judge  Clifford  in  Com- 
missioners of  County  of  Marion  v.  Clark,''  as  follows :  "  Decided 
cases  may  be  found  where  it  is  held  that,  if  there  is  a  scintilla  of 
evidence  in  support  of  the  case,  the  Judge  is  bound  to  leave  it  to 
the  jury;    but  the  modern  decisions  have  established  the  more 

§  418.    '  Stearns  v.  United  States,  ^  United   States  v.   Dietrich,    126 

152  Fed.  900, 82  CCA.  48  (8th  Cir.) .      Fed.  676. 

»  Dean    v.     United    States,     246  *  94  U.  S.  278,  284,  24  L.  ed.  59. 

Fed.  568,  158  C  C  A.  538  (5th  Cir.). 
350 


Chap.  XXXIII] 


SCOPE    OF   THE    MOTION 


[§418 


reasonable  rule,  to  wit :  that,  before  the  evidence  is  left  to  the 
jury,  thers  is  or  may  be  in  every  case  a  preliminary  question  for 
the  judge  not  whether  there  is  literally  no  evidence,  but  whether 
there  is  any  upon  which  a  jury  can  properly  proceed  to  find  a 
verdict  for  the  party  producing  it  upon  whom  the  burden  of  proof 
is  imposed."  ^  The  Federal  Appellate  Courts  regard  a  motion  by 
the  defendant  for  a  directed  verdict  as  challenging  the  legal  suffi- 
ciency of  the  evidence.  A  request  by  the  defendant  for  a  directed 
verdict,  says  Sanborn,  J.  in  Isbell  v.  United  States :  ^  "  Necessarily 
and  unavoidably  presents  this  question  of  law  to  the  mind  of  the 
trial  judge  for  decision  and  to  the  mind  of  every  lawyer  within 
hearing  of  the  request.  No  statement  to  the  court  that  the 
ground  of  it  is  the  absence  of  substantial  evidence  to  sustain  the 
plaintiff's  cause  of  action  could  call  that  ground  more  forcibly  to  its 
attention  than  the  request  itself,  because  that  is  the  ground  which 
first  occurs  to  the  mind  and  on  which  such  a  request  is  ordinarily 
based."  ^    This  rule  is  applicable  to  criminal  as  well  as  civil  cases. 


»  Giblin  v.  McMullen,  L.  R.  2  P. 
C.  Apps.  335 ;  Improvement  Co.  v. 
Munson,  14  Wall.  (U,  S.)  448,  20  L. 
ed.  872 ;  Pleasants  v.  Fant,  22  Wall. 
(U.  S.)  120,  22  L.  ed.  782 ;  Parks  v. 
Ross,  11  How.  373  ;  Merchants'  Bank 
V.  State  Bank,  10  WaU.  (U.  S.)  637, 19 
L.  ed.  1015 ;  Hickman  v.  Jones,  9 
WaU.  (U.  S.)  201,  19  L.  ed.  553.  See 
also  Patton  v.  Texas  &  Pacific  Ry. 
Co.,  179  U.  S.  660,  45  L.  ed.  361, 
21  S.  C.  275;  Brady  v.  Chicago  G. 
W.  Ry.  Co.,  114  Fed.  100,  105, 
52  C.  C.  A.  48,  52,  53  (8th  Cir.) ; 
Cole  V.  German  Savings  &  Loan 
Soc,  124  Fed.  113,  121,  122,  59  C. 
C.  A.  593,  601,  602  (8th  Cir.) ;  St. 
Louis  Cordage  Co.  v.  Miller,  126 
Fed.  495,  508,  61  C.  C.  A.  477,  490 
(8th  Cir.) ;  Chicago  Great  Western 
Ry.  Co.  V.  Roddy,  131  Fed.  712,  713, 
65  C.  C.  A.  470,  471  (8th  Cir.); 
Western  Union  Telegraph  Co.  v. 
Baker,  140  Fed.  315,  319,  72  C.  C.  A. 
87,  91  (8th  Cir.) ;  First  Nat.  Gold 
Min.  Co.  V.  Altvater,  149  Fed.  393, 


397,  79  C.  C.  A.  213,  217  (8th  Cir.) ; 
Duff  V.  United  States,  185  Fed.  101, 
107  C.  C.  A.  319  (4th  Cir.) ;  Missouri 
Pac.  Ry.  Co.  v.  Oleson,  213  Fed.  329, 
330,  130  C.  C.  A.  31,  32  (8th  Cir.). 

6  227  Fed.  788,  142  C.  C.  A.  312 
(8th  Cir.). 

7  Dean  v.  United  States,  246 
Fed.  568,  158  C.  C.  A.  538  (5th  Cir.) ; 
Chicago,  Milwaukee  &  St.  Paul  Ry. 
Co.  V.  Bennett,  181  Fed.  799,  801, 
104  C.  C.  A.  309,  311  (8th  Cir.); 
Hedderly  v.  United  States,  193  Fed. 
561,  571,  114  C.  C.  A.  227,  237  (9th 
Cir.) ;  Atchison,  Topeka  &  S.  F.  Ry. 
Co.  V.  Meyers,  76  Fed.  443,  444,  447, 
22  C.  C.  A.  268,  269,  272  (7th  Cir.) ; 
Wiborg  V.  United  States,  163  U.  S. 
632,  658,  41  L.  ed.  289,  16  S.  C. 1127; 
McDowell  V.  United  States,  257 
Fed.  298  (8th  Cir.);  Louisville  & 
N.  R.  Co.  V.  Womack,  173  Fed.  752, 
97  C.  C.  A.  520  (6th  Cir.).  Contra: 
Adams  v.  Shock,  104  Fed.  54,  43  C. 
C.  A.  407  (7th  Cir.). 

351 


§  418]  MOTION    FOR    A    DIRECTED    VERDICT       [Chap.  XXXlll 

In  Sparf  v.  United  States^  (a  murder  case),  the  opinion  of  the 
court  by  Mr.  Justice  Harlan  reads  as  follows :  "The  law  makes  it 
the  duty  of  the  jury  to  return  a  verdict  according  to  the  evidence 
in  the  particular  case  before  them.  But  if  there  are  no  facts 
in  evidence  bearing  upon  the  issue  to  be  determined,  it  is  the  duty 
of  the  court,  especially  when  so  requested,  to  instruct  them  as  to 
the  law  arising  out  of  that  state  of  case.  So,  if  there  be  some 
evidence  bearing  upon  the  particular  issue  in  a  cause,  but  it  is  so 
meagre  as  not,  in  law,  to  justify  a  verdict  in  favor  of  the  party 
producing  it,  the  court  is  in  the  line  of  duty  when  it  so  declares  to 
the  jury."  ^  The  court  held  that  while  cases  announcing  the 
above  rule  were  of  a  civil  nature,  they  are  with  few  exceptions  appli- 
cable to  criminal  causes,  and  indicate  the  true  test  for  determining 
the  respective  functions  of  court  and  jury.  The  court  also  held 
that  the  trial  Judge  has  the  right  even  in  a  capital  case  to  instruct 
the  jury  as  a  matter  of  law  to  return  a  verdict  of  acquittal  on  the 
evidence  adduced  bj^  the  prosecution  .^° 

§  419.   Court  Cannot  Direct  a  Verdict  of  Guilty. 

In  a  criminal  case,  the  court  cannot  direct  a  verdict  of  guilty.^ 
If  the  trial  court  in  giving  an  instruction  to  the  jury  should  con- 
struct it  in  such  a  way  that  it  would  be  inferred  from  the  tenor 
of  the  instruction  that  the  jury  is  required  to  convict,  the  appellate 
court  will  treat,  this  as  though  it  were  a  directed  verdict  of  guilty 
and  will  therefore  reverse  the  judgment.^ 

§  420.   Application  of  Theory  of  Innocence  on  Motion  to  Direct. 

Evidence  of  facts  that  are  as  consistent  with  innocence  as  with 
guilt  is  insufficient  to  sustain  a  conviction.  Unless  there  is  sub- 
stantial evidence  of  facts  which  exclude  every  other  hypothesis 

8 156  U.  S.  51,  at  pages  99  to  100,  L.   ed.   919;     Meehan  v.   Valentine, 

39  L.  ed.  343,  15  S.  C.  273.  145  U.  S.  611,  625,  36  L.  ed.  835. 

"Pleasants  j;.  Fant,  89  U.  S.  116,  ^o  Sparf    v.     United    States.     156 

121,  22  L.  ed.  780 ;    Montclair  Twp.  U.  S.  51,  39  L.  ed.  343,  15  S.  C.  273. 
V.  Dana,   107  U.  S.   162,  27  L.  ed.  §  419.   i  Sparf   v.    United    States, 

436 ;    Randall  v.  Baltimore  &  Ohio  156  U.  S.  51,  105,  39  L.  ed.  343,  15 

R.  R.  Co.,  109  U.  S.  478,  27  L.  ed.  S.  C.  273 ;    United  States  v.  Taylor, 

1003;    Schofield   v.    Chicago    M.    &  11  Fed.  470. 

St.  Paul  R.  R.  Co.,   14  U.  S.  615,  ^  Cummins  v.  United  States,  232 

619,    29    L.    ed.    224;     Marshall    v.  Fed.    844,    147    C.    C.    A.   38    (8th 

Hubbard,    117   U.   S.   415,   419,    29  Cir.). 
352 


Chap.  XXXIII]     COURT  CANNOT  DIRECT  VERDICT  OF  GUILTY     [§  422 

but  that  of  guilt,  it  is  the  duty  of  the  trial  judge  to  instruct  the 
jury  to  return  a  v-rdict  for  the  accused,  and  where  all  the  sub- 
stantial evidence  is  as  consistent  with  innocence  as  with  guilt, 
it  is  the  duty  of  the  appellate  court  to  reverse  a  judgment  against 
him.^ 

§  421.   Saving  Questions  for  Review. 

In  order  to  save  for  review  the  question  whether  the  evidence  of 
the  prosecution  was  sufficient  to  entitle  it  to  be  submitted  to  the 
jury,  the  proper  method  is  to  move  the  court  for  a  directed  verdict 
at  the  close  of  the  Government's  case,  or  at  the  close  of  all  the 
evidence. 

§  422.  Waiver  by  Introducing  Evidence  —  When  Not  a 
Waiver. 

There  are  a  number  of  cases  holding  that  the  claim  of  the  in- 
sufficiency of  the  evidence  introduced  by  the  Government  in  a 
criminal  case  is  waived,  if  after  the  close  of  the  Government's 
testimony  the  motion  of  the  defendant  for  a  directed  verdict  is 
'Overruled  and  the  defendant  introduces  evidence  in  his  own 
behalf.^  But  this  rule  is  not  applicable  to  a  case  where  there  is 
no  legal  or  competent  evidence  whatever  in  the  record  justifying 

§420.   ilsbell   t;."  United   States,  United  States?).  McKenzie  (D.  C), 

227  Fed.  788,  142  C.  C.  A.  312  (8th  35  Fed.  826,  827,  828. 
Cir.) ;     Union    Pacific    Coal    Co.    v.  §  422.   i  Stearns  v.  United  States, 

United  States,    173   Fed.   737,   740,  152  Fed.  900,  82  C.  C.  A.  48  (8th 

97   C.   C.   A.   578,   581    (8th   Cir.);  Cir.);     Hodson    v.    United    States, 

Vernon  v.   United  States,    146  Fed.  250  Fed.  421,  162  C.  C.  A.  491  (8th 

121,  123,  124,  76  C.  C.  A.  547,  550  Cir.) ;   Sandals  v.  United  States,  213 

(8th  Cir.) ;    Hayes  v.  United  States,  Fed.  569,  131  C.  C.  A.  21  (6th  Cir.) ; 

169  Fed.  101,  103,  94  C.  C.  A.  449,  Gould  i;.  United  States,  209  Fed.  730, 

451  (8th  Cir.) ;   W.  F.  Corbin  &  Co.  126  C.  C.  A.  454  (8th  Cir.) ;  Simpson 

V.  United  States,  181  Fed.  296,  305,  i;.  United  States,  184  Fed.  817,  107 

104  C.  C.  A.  278,  287   (6th  Cir.);  C.   C.   A.   89   (8th  Cir.);    Leyer  v. 

Prettyman    v.    United    States,     180  United    States,    183    Fed.    102,    105 

Fed.  30,  43,  103  C.  C.  A.  384,  397  C.   C.   A.  394   (2d  Cir.) ;    Thlinket 

(6th  Cir.);  Harrison  r.  United  States,  Packing  f  Co.   v.   United  States,   236 

200   Fed.   662,   664,    119   C.    C.   A.  Fed.  109  (9th  Cir.) ;  Burton  t;.  United 

78,    80    (6th    Cir.) ;     United   States  States,  142  Fed.  57,  73  C.  C.  A.  243 

V.  Richards  (D.  C),   149  Fed.  443,  (8th  Cir.);  Goldman  r.  United  States, 

454;   United  States  v.  Hart  (D.  C),  220  Fed.  57,  135  C.  C.  A.  625  (6th 

78    Fed.     868,     873.     Affirmed,    84  Cir.);    Clark  v.  United  States,  245 

Fed.  799,  28  C.  C.  A.  6l2  (3d  Cir.) ;  Fed.  112,  157  C.  C.  A.  408  (9th  Cir.). 
VOL.  1  —  23  353 


§422] 


MOTION    FOR   A   DIRECTED    VERDICT       [Chap.  XXXIII 


the  conviction.  In  such  a  case  there  is  no  waiver  and  the  review- 
ing court  will  reverse  the  conviction  even  though  no  motion  to 
direct  a  verdict  was  made  at  any  time.-  In  criminal  cases  when 
a  plain  error  is  committed  in  a  matter  vital  to  the  defendant  the 
Appellate  Courts  invariably  exercise  their  discretion  to  correct 
it.^  By  an  Act  of  Congress  in  force  February  26,  1919,  amending 
Section  269  of  the  Federal  Judicial  Code,  it  is  now  the  duty  of 
the  Federal  Courts  on  motion  for  new  trial  or  on  writ  of  error  to 
examine  the  entire  record  without  regard  to  technicalities  or 
exceptions.'*  Nevertheless,  it  is  the  safer  practice  to  preserve 
the  question  of  the  sufficiency  of  the  evidence  by  repeating  the 
motion  for  a  directed  verdict  at  the  close  of  all  the  evidence.^ 


2Clyatt  V.  United  States,  197 
U.  S.  207,  49  L.  ed.  726,  25  S.  C.  429 ; 
Wiborg  V.  United  States,  163  U.  S. 
632,  41  L.  ed.  289,  16  S.  C.  1197. 

^Clyatt  V.  United  States,  197 
U.  S.  207,  49  L.  ed.  726,  25  S.  C.  429 ; 
Wiborg  V.  United  States,  163  U.  S. 
632,  41  L.  ed.  289,  16  S.  C.  1197; 
WilUam  v.  United  States,  158  Fed.  30. 

^  August  V.  United  States,  257 
Fed.  388,  —  C.  C.  A.  —  (8th  Cir.). 


*  Rimmerman  v.  United  States, 
186  Fed.  307,  108  C.  C.  A.  385; 
Clark  V.  United  States,  245  Fed. 
112,  157  C.  C.  A.  408  (9th  Cir.); 
Thhnket  Packing  Co.  v.  United 
States,  236  Fed.  109  (9th  Cir.); 
Tucker  v.  United  States,  224  Fed. 
833,  140  C.  C.  A.  279  (6th  Cir.); 
Kasle  V.  United  States,  233  Fed. 
878,  147  C.  C.  A.  552  (6th  Cir.). 


354 


CHAPTER  XXXIV 

ARGUMENT  OF  UNITED  STATES  ATTORNEY 

§  423.  Quasi  Judicial  Officer. 

§  424.  Right  to  Open  and  Close. 

§  425.  Argument  Must  Be  Based  on  Facts  in  Record. 

§  426.  Comment  on  Failure  of  Defendant  to  Testify  Prohibited. 

§  427.  Instances  of  Unfair  Comment. 

§  428.  Comment  as  to  Character  of  the  Defendant. 

§  429.  Inflaming  the  Minds  of  the  Jury. 

§  430.  Duty  of  Court  to  Repress  Improper  Argument. 

§  431.  Effect  of  Improper  Argument  of  District  Attorney. 

§  432.  Necessity  of  Objection  and  Exception  —  New  Rule. 

§  423.   Quasi  Judicial  Officer. 

Contemporary  incumbents  of  the  oflBces  of  district  and  prose- 
cuting attorneys,  in  their  zealous,  and  at  times,  passionate 
efforts  to  gain  records  for  numerous  convictions  in  criminal  cases, 
are  prone  to.  disregard  the  basic  and  fundamental  nature  of  their 
positions.  The  rule  was  well  stated  by  Justice  Cooley,  in  People 
V.  Bemis,^  that  a  prosecuting  attorney  is  a  quasi  judicial  officer 
and  must  be  exclusively  the  representative  of  public  justice.  The 
language  used  by  Judge  Vann,  in  People  v.  Fielding,^  is  much 
stronger.  "  If  he  (public  prosecutor)  lays  aside  the  impartiality 
that  should  characterize  his  official  action  to  become  a  heated 
partisan,  and  by  vituperation  of  the  prisoner  and  appeals  to 
prejudice  seeks  to  procure  a  conviction  at  all  hazards,  he  ceases 
to  properly  represent  the  public  interest,  which  demands  no 
victim,  and  asks  no  conviction  through  the  aid  of  passion,  sym- 
pathy or  resentment."  The  public  prosecutor  is  regarded  univer- 
sally as  a  quasi  judicial  officer  presumed  to  act  impartially  in  the 
interest  only  of  justice,  and  to  accord  the  defendant  a  fair  trial .^ 

§  423.  1  51  Mich.  422,  16  N.  W.  ^  Fitter  v.  United  States,  258  Fed. 

794.  .  567,  —  C.  C.  A.  ~  (2d  Cir.) ;  People 

2 158  N.  Y.  542,  547.  v.  Davenport,  13  Cal.  632,  110  Pac. 

355 


§  424]     ARGUMENT    OF    UNITED    STATES    ATTORNEY      [Chap.  XXXIV 


§  424.  Right  to  Open  and  Close. 

The  attorney  for  the  Government  has  the  right  to  close  in  all 
criminal  prosecutions.^  It  was  held  that  the  defendant  had  the 
right  to  open  and  close  on  the  trial  for  the  purpose  of  determining 
the  mental  condition  of  the  defendant  and  whether  he  was  sane 
enough  to  aid  his  counsel  in  the  defense.^ 

§  425.   Argument  Must  Be  Based  on  Facts  in  Record. 

A  United  States  attorney  has  no  right  to  present  an  argument 
to  the  jury  not  based  on  evidence  in  the  case  if  such  an  argument 
tends  in  the  slightest  degree  to  prejudice  the  jury  against  the 
defendant ;  ^  nor  may  he  make  any  statement  not  connected 
with  the  case,  if  that  statement  be  prejudicial  to  the  defendant.^ 
And  if  such  statements  of  the  United  States  attorney  are  not 
corrected  by  the  court  or  withdrawn  by  the  prosecuting  attorney, 
they  constitute  reversible  error ,^  if  shown  to  be  unwarranted  and 
so  improper  as  to  be  clearly  injurious  to  the  accused.^ 


318;  State  v.  Blackman,  108  La. 
121,  32  So.  334;  State  v.  Warford, 
106  Mo.  55,  16  S.  W.  886;  People 
V.  Fielding,  158  N.  Y.  542,  53  N.  E. 
497 ;  State  v.  Osborn,  54  Oregon, 
289,  103  Pac.  627;  Commonwealth 
V.  Shoemaker,  240  Pa.  St.  255 ;  Com- 
monwealth V.  Nicely,  130  Pa.  261,  270. 

§  424.  1  United  States  v.  Bates, 
2  Cranch  (C.  C),  405,  Fed.  Cas.  No. 
14543. 

2  United  States  v.  Chisolm,  149 
Fed.  284. 

§  425.  '  Lowden  v.  United  States, 
149  Fed.  673,  79  C.  C.  A.  361  (5th 
Cir.);  Hall  v.  United  States,  150 
U.  S.  76,  37  L.  ed.  1003,  14  S.  C.  22 ; 
Williams  v.  United  States,  168  U.  S. 
382,  42  L.  ed.  509, 18  S.  C.  92 ;  Graves 
V.  United  States,  150  U.  S.  118,  37 
L.  ed.  1021,  14  S.  C.  40. 

2  August  V.  United  States,  257 
Fed.  388  (C.  C.  A.  8th  Cir.) ;  Wilson 
V.  United  States,  149  U.  S.  60,  37 
L.  ed.  6.50,  13  S.  C.  765 ;  Graves  v. 
United  States,  150  U.  S.  118,  37  L. 
ed.  1021,  14  S.  C.  40;    Washington 

356 


V.  State,  87  Ga.  12;  Hall  v.  United 
States,  150  U.  S.  76,  82,  37  L.  ed. 
1013,  14  S.  C.  22. 

2  August  V.  United  States,  257 
Fed.  388 ;  Lowden  v.  United  States, 
149  Fed.  673,  79  C.  C.  A.  361  (5th 
Cir.);  Hall  v.  United  States,  150 
U.  S.  76,  82,  37  L.  ed.  1003,  14  S.  C. 
22;  Wilhams  v.  United  States,  168 
U.  S.  382,  42  L.  ed.  509,  18  S.  C.  92 ; 
Graves  v.  United  States,  150  U.  S.  118, 
37  L.  ed.  1021,  14  S.  C.  40 ;  Wilson  v. 
United  States,  149  U.  S.  60,  37  L.  ed. 
650,  13  S.  C.  765 ;  Hopt  v.  Utah,  120 
U.  S.  430,  442,  30  L.  ed.  708,  7  S.C. 
614;  Rose  v.  United  States,  227  Fed. 
357,  363,  142  C.  C.  A.  53  (8th  Cir.). 

^  Higgins  V.  United  States,  185 
Fed.  710,  108  C.  C.  A.  48  (6th  Cir.) ; 
Chadwick  v.  United  States,  141  Fed. 
225,  72  C.  C.  A.  343  (6th  Cir.); 
Crumpton  v.  United  States,  138  U. 
S.  361,  34  L.  ed.  958,  11  S.  C.  355; 
Lowden  v.  United  States,  149  Fed. 
673,  79  C.  C.  A.  361  (5th  Cir.); 
Williams  v.  United  States,  168  U. 
S.  382,  42  L.  ed.  509,  18  S.  C.  92. 


Chap.  XXXIV]      DEFENDANT'S   FAILURE   TO   TESTIFY  [§  426 

§  426.  Comment  on  Failure  of  Defendant  to  Testify  Prohibited. 

At  common  law  no  one  was  compelled  to  testify  in  his  own  behalf.^ 
This  maxim  was  embodied  in  our  own  Constitution  ^  and  upheld  by 
our  own  courts.^  Furthermore,  at  common  law,  he  was  not  even 
permitted  to  testify,  but  must  rest  on  the  duty  of  the  Government 
to  prove  his  guilt.''  Obviously  in  cases  where  testimony  by  the 
accused  would  easily  establish  his  innocence,  it  was  unjust  to 
keep  him  from  the  stand.  And  so  by  statute  the  accused  was 
accorded  the  right  to  testify,  if  he  so  desired.^  In  many  cases, 
particularly  where  the  defendant  has  undergone  confinement  in 
jail  for  a  considerable  time  before  trial,  or  when,  because  of 
physical  deformity  or  nervousness  or  timidity,  the  appearance  of 
the  defendant  may  be  against  him,  it  may  not  be  desirable  for  him 
to  go  on  the  stand.  To  relieve  the  defendant  from  such  em- 
barrassment, the  statute  provides  that  his  failure  to  testify  should 
not  create  any  presumption  of  guilt  against  him.^  Accordingly, 
the  district  attorney  may  not  call  the  accused  to  the  stand  against 
his  wish  ^  nor  demand  of  him  the  production  of  any  document  in 
the  presence  of  the  jury,^  nor  may  he  comment  on  the  neglect, 
failure  or  refusal  of  a  defendant  to  avail  himself  of  his  right  to 


§  426.   1  Wilson  v.  United  States,  *  Wilson    v.    United    States,    149 

149  U.  S.  60,  37  L.  ed.  650,  13  S.  C.  U.  S.  60,  37  L.  ed.  650,  13  S.  C.  765. 

765.  ^  Act    of    Congress,     March     16, 

2  Constitution,    5th   Amendment :  1878,  20  Stat.  30,  c.  37  (U.  S.  Com- 
"...  no  person  shall  be  compelled  piled  Stat.  1916,  §  1465). 

in  any  criminal  case  to  be  a  witness  « Act  of  March  16,   1878,  20  St. 

against  himself  ..."  30,  c.  37  (U.  S.  Comp.  Stat.  1916, 

3  Wilson    V.    United    States,    149  §1465). 

U.  S.  60,  37  L.  ed.  650,  13  S.  C.  765;  ^  Wilson    v.    United    States,    149 

Tucker  v.  United  States,  151  U.  S.  U.  S.  60,  37  L.  ed.  650,  13  S.  C.  765 ; 

164,  38  L.  ed.   112,    14    S.  C.  299;  Lee  v.  United  States,  150  U.  S.  476, 

Lee  V.  United  States,  150  U.  S.  476,  37  L.  ed.  11,50,  14  S.  C.  163;   Tucker 

37  L.  ed.  1150,  14  S.  C.  163;   Stone  v.  United  States,  151  U.  S.  164,  38 

t;.  United  States,   167  U.  S.  178,  42  L.  ed.   112,   14  S.  C.  299;    Stone  v. 

L.  ed.  127,  17  S.  C.  778,  holding  that  United  States,  167  U.  S.  178,  42  L. 

this    would    apply    to    cases    quasi  ed.  127,  17  S.  C.  778 ;  Boyd  v.  United 

criminal    in    natjire,    to    recover    a  States,  116  U.  S.  616,  29  L.  ed.  746, 

penalty,    forfeiture,    etc. ;     Boyd    v.  6  S.  C.  524. 

United  States,  116  U.  S.  616,  29  L.  » McKjiight  v.  United  States,  122 

ed.  746,  6  S.  C.  524;  York  v.  United  Fed.  926,  61  C.  C.  A.  112  (6th  Cir.) ; 

States,  241  Fed.  656,  154- C.  C.  A.  Hanish  v.   United  States,   227  Fed. 

414  (9th  Cir.).  584,  142  C.  C.  A.  216  (7th  Cir.). 

357 


§  426]     ARGUMENT   OF    UNITED    STATES   ATTORNEY      [Chap.  XXXIV 

testify.^  Any  such  comment  constitutes  reversible  error.^''  And 
even  if  the  comment  be  not  a  direct  reference  to  the  failure  of  the 
accused  to  testify,  but  is  designed,  in  an  indirect  way,  to  bring 
the  attention  of  the  jury  to  the  defendant's  failure  to  testify,  it 
will  constitute  reversible  error.^^ 

§  427.  Instances  of  Unfair  Comment. 

"  I  want  to  say  to  you,  gentlemen  of  the  jury,  that  If  I  am  ever 
charged  with  a  crime,  I  will  not  stop  by  putting  witnesses  on  the 
stand  to  testify  to  my  character,  but  I  will  go  upon  the  stand  and 
hold  up  my  hand  before  high  heaven  and  testify  to  my  innocence 
of  crime."  This  statement  was  held  to  be  reversible  error.^ 
If,  however,  the  defendant  takes  the  stand  in  his  own  behalf,  he 
reverts  to  the  status  of  an  ordinary  witness.^  On  a  motion  for  a 
continuance,  it  is  improper  for  either  court  or  prosecuting  attorney, 
if  the  jury  be  present  in  the  court  room,  to  make  comments  to 
the  merits  of  the  case,  which  are  detrimental  to  the  defendant. 
Such  remarks  are  equivalent  to  an  erroneous  instruction.^  It  is 
improper  for  a  district  attorney  to  ask  a  defendant  when  on  the 
witness  stand  whether  his  partner  was  not  under  indictment  for 
using  the  mails  to  defraud.^ 

9  Diggs    V.    United    States,    220  673,    and    cases    cited ;  —  Certiorari 

Fed.    545,    136   C.    C.   A.    147    (9th  denied,  210  U.  S.  434. 
Cir.).  §  427.   i  Wilson  v.  United  States, 

»» Wilson   V.    United   States,    149  149  U.  S.  60,  37  L.  ed.  650,  13  S.  C. 

U.  S.  60,  37  L.  ed.  650,  13  S.  C.  765 ;  765. 

United    States    v.    Snyder,    14    Fed.  ''Diggs    v.     United    States,     220 

554,  557 ;  Dimmick  v.  United  States,  Fed.  545,  136  C.  C.  A.  147  (9th  Cir.) 

121  Fed.  638,  644,  57  C.  C.  A.  664  Reagan  v.  United  States,  157  U.  S 

(9th  Cir.);    Rose  v.  United  States,  301,  39  L.  ed.  709,   15  S.  C.  610 

227  Fed.  357,  363,  142  C.  C.  A.  53  Fitzpatrick  v.  United  States,  178  U 

(8th  Cir.) ;   Tucker  v.  United  States,  S.  304,  44  L.  ed.  1078,  20  S.  C.  944 

151  U.  S.  164,  38  L.  ed.  112,  14  S.  C.  Sawyer  v.  United  States,    202  U.  S 

299;     McKnight    v.    United    States,  150,  166,  50  L.  ed.  972,  26  S.  C.  575 

115  Fed.  972,  54  C.  C.  A.  358  (6th  Balliet   v.   United   States,    129   Fed 

Cir.);    Stout  v.  United  States,   227  689,   64   C.   C.   A.   201    (8th   Cir.) 

Fed.  799,  803,  142  C.  C.  A.  323  (8th  United  States  v.  Brown,  40  Fed.  457 

Cir.) ;    Reagan  v.  United  States,  157  Williams  v.  United  States,  254  Fed. 

U.  S.  301,  39  L.  ed.  709,  15  S.  C.  52  (5th  Cir.). 
610.  3  Allen     v.     United     States,     115 

"  Shea  V.  United  States,  251  Fed.  Fed.  3,  52  C.  C.  A.  597  (9th  Cir.). 
440,  445,  163  C.  C.  A.  4.58  (6th  Cir.) ;  <  Tingle  v.  United  States,  87  Fed. 

Lowden  v.  United  States,   149  Fed.  320,  30  C.  C.  A.  666  (5th  Cir.). 
358 


Chap.  XXXIV]  INFLAMING    THE    MINDS    OF   THE   JURY  [§  429 

§  428.   Comment  as  to  Character  of  the  Defendant. 

The  legal  presumption  exists  that  the  defendant's  character  is 
good/  and  he  may  rest  on  that  presumption.^  The  Circuit  Court 
of  Appeals  for  the  Eighth  Circuit  has  laid  down  the  rule  that  in  a 
criminal  trial,  there  being  no  evidence  introduced  on  the  subject, 
the  court  will  not  charge  that  there  is  a  legal  presumption  of  good 
character  of  the  accused.^  These  cases  lay  down  the  modern  rule, 
and  the  rule  of  an  earlier  case  ^  is  of  no  effect  now.  He  may,  if 
he  choose,  call  witnesses  to  show  that  his  character  was  such  as 
would  make  it  unlikely  that  he  would  be  guilty  of  the  particular 
crime  with  which  he  is  charged.^  But  where  the  defendant  fails 
to  offer  evidence  as  to  good  character,  it  is  improper  for  the  district 
attorney  to  appeal  to  the  jury  to  assume  that  the  defendant's 
character  is  bad,  because  he  failed  to  prove  the  contrary.^  Not 
only  may  the  district  attorney  not  refer  to  the  defendant's  failure 
to  prove  his  good  character,  but  unless  the  defendant  himself 
makes  character  an  issue,  the  district  attorney  may  not  even 
introduce  evidence  to  prove  bad  character  or  habits  as  part  of  his 
case.^ 

§  429.  Inflaming  the  Minds  of  the  Jury, 

It  is  highly  improper  for  a  United  States  attorney  to  use  in- 
flammatory language  calculated  to  prejudice  the  accused  in  the  eyes 

§  428.  1  Lowden  v.  United  States  ^  Mullen    v.    United    States,    106 

149  Fed.  673,  79  C.  C.  A.  361  (5th  Fed.  892,  46  C.  C.  A.  22  (6th  Cir.). 
Cir.) ;    Higgins  v.  United  States,  185  ^  Edgington  v.  United  States,  164 

Fed.  710,  108  C.  C.  A.  48  (6th  Cir.) ;  U.  S.  361,  41  L.  ed.  467,  17  S.  C.  72 ; 

Dimmick  v.  United  States,  121  Fed.  Le  More  v.  United  States,  253  Fed. 

638,  57  C.  C.  A.  664  (9th  Cir.).  887,  —  C.  C.  A.  —  (5th  Cir.). 
I     2  Mullen    V.    United    States,    106  « Hall  v.  United  States,  256  Fed. 

Fed.  892,  46  C.  C.  A.  22  (6th  Cir.) ;  748,  —  C.  C.  A.  —  (4th  Cir.) ;   Mc- 

Lowden  v.  United  States,   149  Fed.  Knight  v.  United  States,  97  Fed.  208, 

673,  79  C.  C.  A.  361  (5th  Cir.).  38  C.  C.  A.  115  (6th  Cir.);   Higgins 

3De  Moss  V.  United  States,  250  «;.  United  States,  185  Fed.  710,  108 

Fed.  87,  162  C.  C.  A.  259  (8th  Cir.) ;  C.  C.  A.  48   (6th  Cir.) ;    Dimmick 

Greer  v.  United  States,  240  Fed.  320,  v.  United  States,    121   Fed.  638,  57 

153  C.  C.  A.  246  (8th  Cir.),  affirmed,  C.  C.  A.  664  (9th  Cir.);    Lowden  v. 

245  U.  S.  559,  62  L.  ed.  469,  38  S.  United  States,  149  Fed.  673,  79  C. 

C.  209;  Price  v.  United  States,  218  C.  A.  361  (5th  Cir.). 
Fed.  149,  132  C.  C.  A.  1  (8th  Cir.)  ;  ^  Gordons.  United  States,  254  Fed. 

Chambliss    v.    United    States,    218  53 ;  WiUiams  v.  United  States,  168  U. 

Fed.  154,  132  C.  C.  A.  112  (8th  Cir.).  S.  382,  42  L.  ed.  509,  18  S.  C.  92. 

359 


§  429]     ARGUMENT   OF   UNITED   STATES   ATTORNEY      [Chap.  XXXIV 

of  the  jury.  Hence,  in  a  recent  case/  in  a  prosecution  for  at- 
tempted bribery  of  officers  of  selective  draft  boards,  references 
to  the  war  with  Germany  were  held  to  be  prejudicial  error.  In 
another  recent  case  ^  arising  under  the  Espionage  Act,  the  court 
held  it  to  be  reversible  error  for  the  district  attorney  to  bring 
to  the  notice  of  the  jury  that  the  defendant  had  failed  to  intro- 
duce a  witness  who  would  testify  to  the  patriotism  of  the  accused 
or  object  to  the  prosecution.  Likewise  statements  by  the  district 
attorney  to  the  jury  commenting  upon  the  absence  of  the  defend- 
ant's wife  and  that  she  ought  to  be  sitting  by  the  side  of  her  hus- 
band, during  the  trial,  impose  a  duty  upon  the  court,  if  his  atten- 
tion is  called  to  them  specially,  to  interfere  and  put  a  stop  to  them 
as  it  was  held  to  be  prejudicial  to  the  accused.^  In  IMorris  v. 
United  States,^  the  prosecutor  attempted  to  show  a  document  to 
a  witness  to  refresh  his  memory.  The  defendant's  objection  that  it 
could  not  be  used  because  it  had  not  been  shown  to  him  was  over- 
ruled by  the  trial  judge.  The  Circuit  Court  of  Appeals,  in  revers- 
ing the  case  on  the  ground  that  the  defendant's  right  of  confronta- 
tion was  violated,  said  :  "  that  the  universal  rule  of  evidence  in  the 
courts  of  this  country  (is)  that,  where  a  witness  is  permitted  to  ex- 
amine and  refresh  his  recollection  with  a  paper,  it  is  to  be  tendered  to 
the  other  side  for  inspection  just  as  soon  as  it  has  been  identified." 

§  430.   Duty  of  Court  to  Repress  Improper  Argument. 

It  is  the  duty  of  the  trial  court,  the  objection  being  made,  to 
stop  the  district  attorney  from  continuing  this  line  of  argument 
and  to  take  steps  to  remove,  as  far  as  possible,  its  influence  upon 
the  jury.^  And  it  is  the  duty  of  the  court  to  treat  the  defendant's 
counsel  with  respect,  bearing  in  mind  that  the  latter  is  an  officer 
of  the  court.^ 

§  431 .   Effect  of  Improper  Argument  of  District  Attorney. 
Where  the  objection  is  thus  sustained  by  the  court  and  the  words 
of  the  district  attorney  are  withdrawn  at  once,  it  is  ordinarily 

§  429.   1  August  V.  United  States,  *  149  Fed.  123,  80  C.  C.  A.  112 

257  Fed.  388,  —  C.  C.  A.  —  (8th  Cir.).  (5th  Cir.). 

2  Ilall  V.  United  States,  256  Fed.  §  430.    ^  Lowden  v.  United  States, 

748,  —  C.  C.  A.  —  (4th  Cir.).  149  Fed.  673,  79  CCA.  361  (5th  Cr.). 

»  Graves    v.    United    States,    150  ^  Adler  v.  United  States,  182  Fed. 

U.  S.  118,  37  L.  cd.  1021,  14  S.  C.  40.  404,  104  C  C.  A.  608  (5th  Cir.). 
3G0 


Chap.  XXXIV]      NECESSITY  OF  OBJECTION  AND  EXCEPTION      [§  432 

considered  that  the  injurious  effect  is  thereby  remedied  and  the 
incident  does  not  of  itself  constitute  ground  for  a  new  trial  .^ 
But  an  impression  upon  the  jury  may  have  been  so  strong,  that 
even  the  withdrawal  of  the  words  still  leaves  the  jury  prejudiced. 
In  such  cases,  it  will  be  left  to  the  discretion  of  the  trial  court 
whether  the  remarks  of  the  district  attorney  so  influenced  the 
jury  as  to  produce  the  conviction  of  the  defendant.^ 

§  432.  Necessity  of  Objection  and  Exception  —  New  Rule. 

Formerly  the  rule  was  that  a  party  defendant  could  not  complain 
of  an  improper  argument  of  counsel  unless  he  duly  objected  and 
took  proper  exceptions  to  it.^  This  rule  was  qualified  by  another 
well  known  rule,  that  in  criminal  cases  courts  are  not  inclined  to 
be  exacting  with  reference  to  the  specific  character  of  the  objec- 
tions made,  and  will,  in  the  exercise  of  sound  discretion,  notice 
error  in  the  trial  although  the  question  was  not  properly  raised 
by  objection  or  exception.^  By  an  Act  of  February  26,  1919, 
Congress  amended  Section  269  of  the  Judicial  Code  and  established 
a  new  rule  which  virtually  abolished  the  office  of  an  exception  on 
the  trial  of  any  case.  This  Act  reads  as  follows  :  "  Section  269. 
All  of  the  said  courts  shall  have  power  to  grant  new  trials,  in 
cases  where  there  has  been  a  trial  by  jury,  for  reasons  for  which  new 
trials  have  usually  been  granted  in  the  courts  of  law.  On  the 
hearing  of  any  appeal,  certiorari,  writ  of  error,  or  motion  for  a  new 
trial,  in  any  case,  civil  or  criminal,  the  court  shall  give  judgment 

§  431.   1  Lowden  v.  United  States,  (9th  Cir.) ;   Carlisle  v.  United  States, 

149  Fed.  673,  79  C.  C.  A.  361  (5th  194  Fed.  827,  114  C.  C.  A.  531  (4th 

Cir.) ;    Dunlop  v.  United  States,  165  Cir.) ;     Higgins    v.    United    States, 

U.  S.  486,  498,  41  L.  ed.  799,  17  S.  C.  185  Fed.  710,  108  C.  C.  A.  48  (6th 

375;    Wright  v.  United  States,   108  Cir.);    Union  Pacific  R.   R.   Co.   v. 

Fed.  805,  48  C.  C.  A.  37  (5th  Cir.) ;  Field,  137  Fed.  14,  69  C.  C.  A.  536 

Writ  of  Certiorari  denied,   181  U.  S.  (8th  Cir.) ;    Cudahy  Packing  Co.  v. 

620,  45  L.  ed.  1031,  21  S.  C.  924;  Skoumal,  125  Fed.  470,  60  C.  C.  A. 

KeUog   V.   United   States,    103    Fed,  306  (8th  Cir.). 
200,  43  C.  C.  A.  179  (6th  Cir.).  2  Savage    i;.    United    States,    213 

2  Lowden   v.    United   States,    149  Fed.  31,  130  C.  C.  A.  1  (8th  Cir.) ; 

Fed.  673,  79  C.  C.  A.  361  (5th  Cir.).  Crawford  i^.  United  States,  212  U. 

§  432.   1  Chambers       v.       United  S.  183,  194,  53  L.  ed.  465,  29  S.  C. 

States,  237  Fed.  520,  150  C.  C.  A.  260;    Wiborg  v.  United  States,   163 

395  (8th  Cir.) ;    Donaldson  v.  United  U.  S.  632,  659,  41  L.  ed.  289,  299, 

States,  208  Fed.  4,  125  C.  C.  A.  316  16  S.  C.  1127. 

361 


§  432]     ARGUMENT   OF   UNITED   STATES  ATTORNEY      [Chap.  XXXIV 

after  an  examination  of  the  entire  record  before  the  court,  with- 
out regard  to  technical  errors,  defects  or  exceptions  which  do  not 
affect  the  substantial  rights  of  the  parties."  Interpreting  this 
rule,  the  United  States  Circuit  Court  of  Appeals  in  a  recent  case' 
held  that  it  is  the  duty  of  every  court  to  consider  the  propriety 
of  an  argument  of  a  United  States  attorney  in  a  criminal  case 
irrespective  of  the  fact  that  no  exception  was  taken  to  same. 

'  August  V.  United  States,  257  Fed.  388  (C.  C.  A.  8th  Cir.). 


362 


CHAPTER  XXXV 

CHARGE  TO  JURY 

§  433.  No  Directed  Verdict  of  Guilty. 

§  434.  Functions  of  Court  and  Jury. 

§  435.  Language. 

§  436.  State  Laws. 

§  437.  Summing  Up  the  Facts. 

§  438.  The  Jury  Must  Be  Left  Free  to  Pass  on  Facts. 

§  439.  Court  Expressing  Indignation  and  Improper  Comments. 

§  440.  Instructions  as  to  Defenses  Generally. 

§  44L  Instructions  on  Presumption  of  Innocence. 

§  442.  Reasonable  Doubt  —  Defined. 

§  443.  Failure  of  a  Defendant  to  Testify. 

§  444.  Flight  of  Defendant. 

§  445.  Character. 

§  446.  Exceptions  to  Charge. 

§  433.  No  Directed  Verdict  of  Guilty. 

In  a  criminal  case  the  court  cannot  direct  a  verdict  of  guilty 
against  the  defendant  of  the  offense  charged/  nor  of  any  offense 
less  or  greater  than  that  charged  even  when  the  facts  are  admitted 
beyond  dispute.^  Neither  can  the  com-t  charge  the  jury  that 
the  intent  was  proved.^ 

§  434.  Functions  of  Court  and  Jury. 

Under  the  Constitution  and  laws  of  the  United  States,  the 
jury  in  a  criminal  case  is  not  the  judge  of  the  law.  It  is  to  take 
the  law  from  the  court  and  to  apply  it  to  the  facts  which  it  finds 

§  433.  1  Sparf   v.    United    States,  Cir.) ;    United  States  v.  Taylor,   11 

156  U.  S.  51,  39  L.  ed.  343,  15  S.  C.  Fed.  470. 

273 ;     Cummings    v.    United    States,  ^  Sparf  v.  United  States,   156  U. 

232  Fed.  844,  147  C.  C.  A.  38  (8th  S.  51,  39  L.  ed.  343. 
Cir.) ;    McKnight  v.  United  States,  ^  Cummings     v.     United     States, 

111  Fed.  735,  49  C.  C.  A.  594  (6th  supra. 

363 


/ 


/// 


§  434]  CHARGE    TO   JURY  [Chap.  XXXV 

from  the  evidence.^  The  court  cannot  assume  facts.  It  is  the 
province  of  the  jury  to  pass  on  the  facts  and  it  is  improper  for 
the  court  to  instruct  the  jury  that  they  may  assume  the  existence 
of  certain  facts.^  Comments  by  the  court  concerning  the  value  of 
evidence  are  not  assignable  for  error  when  the  jury  are  left  at  full 
liberty  to  determine  the  issues  of  fact  for  themselves  and  the  rules 
of  law  are  properly  stated.^  The  comments  of  the  judge  must  at 
all  times  be  dispassionate.*  It  is  reversible  error  to  submit  to  the 
jury  the  question  whether  a  conspiracy  includes  means  of  which 
there  is  no  evidence.^  And  this  is  so  because  a  defendant  in  a 
criminal  case  has  the  absolute  right  to  require  that  the  jury  de- 
cide whether  or  not  the  evidence  sustains  each  and  every  material 
allegation  of  the  indictment.  The  court  is  not  warranted  to  decide, 
as  a  matter  of  law,  a  single  issue  presented  by  the  indictment  or 
to  withdraw  the  same  from  the  Qonsideration  of  the  jury.^ 

§  435.  Language. 

The  court  is  not  bound  to  accept  the  language  which  counsel 
employ  in  framing  instructions,  nor  is  it  obliged  to  repeat  instruc- 
tions already  given  in  different  language.^ 

§436.   State  Laws. 

State  laws  forbidding  judges,  in  instructing  juries,  to  express 
opinions  upon  the  facts  are  not  controlling  on  Federal  Courts.^ 

§  434.   1  Konda  v.  United  States,  327 ;  Foster  v.  United  States,  188  Fed. 

166  Fed.  91,  92  C.  C.  A.  78  (7th  Cir.)  ;  305,  110  C.  C.  A.  283  (4th  Cir.). 
Snitkin  v.  United  States,  (C.  C.  A.  7th  ^  Nash  v.   United  States,   229  U. 

Cir.,  March  30, 1920)  ;  Sparf  v.  United  S.  373,  57  L.  ed.  1232,  33  S.  C.  780 ; 

States,  156  U.  S.  51,  39  L.  ed.  343,  15  Patterson  v.  United  States,  222  Fed. 

S.  C.  273 ;  United  States  v.  Keller,  19  599,  650,  138  C.  C.  A.  123  (6th  Cir.). 

Fed.  633 ;    United  States  v.  Morris,  Snitkin  v.  United  States,  supra. 
1  Curt.  23,  Fed.  Cas.  No.  15815.  «  Konda  v.  United  States,  supra ; 

^  Dolan  V.  United  States,  123  Fed.  Snitkin  v.  United  States,  supra. 
52,  59  C.  C.  A.  176  (9th  Cir.),  and  see  §  435.   »  Sugarman       v.       United 

cases  in  note  1.  States,   249  U.  S.   182,  —  L.  ed.  — 

'Smith    V.    United    States,     157  S.  C. — ;  Agnevv  v.    United    States, 

Fed.  721,  732,  85  C.  C.  A.  353  (8th  165  U.  S.  36,  41   L.  ed.   624,    17   S. 

Cir.).     Certiorari   denied   208   U.    S.  C.    235;     Bennett  v.  United  States, 

618,  52  L.  ed.  647,  28  S.  C.  569.  227  U.  S.  333,  57  L.  ed.  531,  33  S.  C. 

*  Stokes  V.  United  States,  264  Fed.  288 ;   Holt  v.  United  States,  218  U.  S. 

19,  CCA.  (8th  Cir.).     Reynolds  t;.  245,54  L.   ed.   1021,   31   S.   C.   20; 

United  States,  98  U.  S.  145,  25  L.  ed.  Blanton    v.   United  States,  213  Fed. 

244;    Hickory  v.  United  States,  160  320,  130  C  C  A.  22  (8th  Cir.). 
U.  S.   408,   40   L.  ed.  474,  16  S.  C  §  436.   i  Vicksburg  and   Meridian 

304 


Chap.  XXXV]     JURY  MUST  BE  LEFT  FREE  TO  PASS  ON  FACTS     [§  438 

§  437.   Summing  Up  the  Facts. 

The  Federal  rule  is  similar  to  that  held  by  the  English  Courts 
that  the  presiding  judge  may,  if  he  deems  it  to  be  proper,  sura  up 
the  facts  to  the  jury;  if  no  rule  of  law  is  misstated,  and  the 
questions  of  fact  are  ultimately  submitted  to  the  determination  of 
the  jury,  an  expression  of  opinion  upon  the  facts  is  not  reviewable 
on  error.^  It  is  the  duty  of  the  presiding  judge  to  call  the  jury's 
attention  to  particular  points,  and  to  comment  upon  the  tendency, 
force  and  comparative  weight  of  conflicting  testimony .^  But  it  is 
improper  for  the  court  to  arbitrarily  single  out  certain  facts  with- 
out consideration  of  other  modifying  facts.^  In  reviewing  the  evi- 
dence, the  judge  must  be  careful  not  to  unduly  emphasize  certain 
parts  of  the  testimony  nor  prejudice  the  jury  by  his  actions  or 
words.  He  must  constantly  keep  in  mind,  especially  in  criminal 
cases,  that  the  importance  and  power  of  his  office  and  the  theory 
and  rule  requiring  impartial  conduct  on  his  part  make  his  slightest 
action  or  suggestion  of  great  weight  with  the  jury.'* - 

§  438.   The  Jury  Must  Be  Left  Free  to  Pass  on  Facts.       * 

The  jurors  are  the  judges  of  the  fact ;  expressions  of  opinion  by 

the  court  on  a  question  of  fact  should  be  so  guarded  as  to  leave 

the  jury  free  in  the  exercise  of  its  own  judgment.     They  should 

distinctly  be  made  to  understand  that  the  judge's  statement  is 

hot  given  as  a  point  of  law  by  which  they  are  to  be  governed,  but 

as  a  mere  opinion  to  which  they  should  attach  no  more  weight  than 

it  is  entitled.^     The  trial  judge  must  not  usurp  the  functions  of  the 

jury  or  appeal  to  their  passion  or  prejudice,^  as  the  jury  is  naturally 

R.  R.  Co.  V.  Putnam,  118  U.  S.  545,  Wedde!  v.   United  States,   213   Fed. 

553,  30  L.  ed.  257,  7  S.  C.  1 ;   Phila-  208,  129  C.  C.  A.  552  (8th  Cir.). 
delphia  &  R.  R.  R.  Co.  v.  Maryland,  *  Adlcr  v.  United  States,  182  Fed. 

239  Fed.  1,  152  C.  C.  A.  51  (3d  Cir.).  464,  104  C.  C.  A.  608  (5th  Cir.). 

§437.   1  Starr  r.  United  States,  153  §438.   i  Starr    v.    United    States, 

U.  S.  614,  624,  38  L.  ed.  841,  14  S.  C.  153  U.  S.  614,  625,  38  L.  ed.  841,  14 

919 ;  Simmons  v.  United  States,  142  S.  C.  919 ;    Rudd  v.  United  States, 

U.  S.  148,  35  L.  ed.  968,  12  S.  C.  171 ;  173  Fed.  912,  97  C.  C.  A.  462  (8th 

Lovejoy  v.  United  States,  128  U.  S.  Cir.) ;    Oppenheim  v.  United  States, 

171,  32  L.  ed.  389,  9  S.  C.  57.  241  Fed.  625,  154  C.  C.  A.  383  (2d 

2  Starr  t;.  United  States,  153  U.  S.  Cir.).  Compare,  Stokes  v.  United 
614, 38  L.  ed.  841, 14  S.  C.  919 ;  United  States,  supra. 

States  V.  Sarchet,  Fed.  Cas.  No.  16224.  2  Sandals    v.    United    States,    213 

3  Perovich  v.  United  States,  205  Fed.  569,  130  C.  C.  A.  149  (6th  Cir.) ; 
¥.  S.  86,  51  L.  ed.  722,^7  S.  C.  456;      Hickory  v.  United  States,  160  U.  S. 

365 


§  438]  CHARGE   TO   JURY  [Chap.  XXXV 

sensitive  to  the  court's  expressions  of  opinion  concerning  the 
issues  of  fact  in  any  case.^  The  reviewing  court  will  take  judicial 
notice  that  the  influence  of  the  trial  judge  on  the  jury  is  so  great 
that  his  slightest  word  or  intimation  is  received  with  deference 
and  may  prove  controlling.'* 

§  439.   Court  Expressing  Indignation  and  Improper  Comments. 

Where  the  trial  judge  manifested  indignation  at  the  circum- 
stances of  the  case,  in  terms  which  were  not  consistent  with  due 
regard  for  the  right  and  duty  of  the  jury  to  exercise  an  independent 
judgment  in  the  premises,  or  with  the  circumspection  and  caution 
which  should  characterize  judicial  utterances,  the  Supreme  Court 
of  the  United  States  expressed  its  disapprobation  of  this  mode  of 
instructing  and  advising  a  jury.^  In  a  leading  case,^  the  court 
summed  up  the  matter  as  follows :  "  In  a  criminal  case  we  think 
the  judge  has  the  right,  and  indeed  it  is  his  duty  to  present  the 
evidence  to  the  jury  in  such  a  light  and  with  such  comments  that 
the  jury  may  see  its  relevancy  and  its  pertinency  to  the  particular 
issue  upon  which  it  was  admitted,  and  thus  be  better  qualified  to 
appreciate  its  character  and  weight  and  to  determine  its  credibility. 
These  questions  are  for  the  jury,  but  it  is  proper  that  a  judge  should 
assist  the  jury  in  marshalling  the  evidence  so  that  they  may  the 
more  readily  and  intelligently  come  to  a  conclusion  which  shall 
be  satisfactory  to  themselves,  consistent  with  the  evidence  and  in 
accordance  with  the  law.  The  judge  should  do  this  in  a  fair  and 
impartial  manner,  having  due  regard  to  the  rights  of  the  defendant 
and  with  a  serious  and  anxious  desire  for  their  preservation.  .  ." 
He  must  take  care  to  separate  the  law  from  the  facts  and  to  leave 
the  latter  in  unequivocal  terms  to  the  judgment  of  the  jury  as 
their  true  and  peculiar  province.^  And  the  judge  has  no  right  to 
persuade  the  jury  as  to  the  facts  or  to  argue  the  case  for  either 

408,  40  L.  ed.  474,   16  S.   C.  327;  <  Starr  v.   United  States,   153  U. 

Mullen  V.  United  States,    106  Fed.  S.  614,  38  L.  ed.  841,  14  S.  C.  919. 

892,  46  C.  C.  A.  22  (6th  Cir.).  §  439.   i  Starry.  United  States,  153 

"  Starr  v.  United  States,  153  U.  S.  U.  S.  614,  38  L.  ed.  841,  14  S.  C.  919.' 

614,  38  L.  ed.  841,  14  S.  C.  919 ;  Hick-  2  People  v.  Fanning,  131  N.  Y.  659, 

ory  V.  United  States,  160  U.  S.  408,  663. 

424,  425,  40  L.  ed.  474,  16  S.  C.  327;  » starr  v.  United  States,   153  U. 

Foster  v.  United  States,  188  Fed.  305,  S.  614,  625,  38  L.  ed.  841,  14  S.  C. 

308,  310,  110  C.  C.  A.  283  (4th  Cir.)  919. 
30G 


Chap.  XXXV]  EXPRESSING    INDIGNATION  [§  439 

side.^  When  the  remarks  of  the  court  are  so  positive  and  em- 
phatic that  the  jury  may  have  beheved  a  finding  for  the  accused 
would  have  subjected  them  to  ridicule,  a  mere  withdrawal  of 
words  and  a  direction  to  the  jury  that  the  question  is  for  them  is 
not  always  sufficient,  and  the  just  remedy  is  a  new  trial.^  Perhaps 
a  judge  cannot  be  considered  as  going  out  of  his  province  in  giving 
a  caution  to  the  jury  as  to  giving  effect  to  the  testimony  of  the 
accused;  but  the  policy  of  the  enactment  allowing  him  to  be  a 
competent  witness  should  not  be  defeated  by  hostile  comments  of 
the  trial  judge,  whose  duty  it  is  to  give  reasonable  effect  and 
force  to  the  law.^  '  It  is  improper  for  a  court  to  express  an  opinion 
to  the  jury,  that  the  defendant  on  trial  is  guilty  of  the  offense 
charged.  That  question  is  one  for  the  jury  to  decide,^  There  is 
one  case  not  in  harmony  with  the  trend  of  authorities.^  It  was 
held  that  the  indication  by  a  district  judge  in  his  charge  that  he 
thought  the  defendant  guilty  does  not  furnish  ground  for  a  new 
trial.  A  large  latitude  is  allowed  to  a  trial  judge  in  the  Federal 
Courts  in  expressing  his  opinion  to  the  jury,  so  long  as  he  leaves 
the  ultimate  issue  of  guilt  or  innocence  to  their  decision.  An 
instruction  that  omits  the  element  of  knowledge  on  the  part  of 
accused  is  error.®  In  a  trial  for  murder  through  the  shooting  by 
another  person,  the  instruction  must  include  the  rule  that  the 
shooting  was  intentionally  encouraged  and  aided  by  the  words  or 
acts  of  the  accused,  and  to  omit  it  is  error .^°  And  even  where  the 
facts  of  a  case  justly  aroused  the  indignation  of  the  court,  it  was 
held  error  for  the  court  to  express  its  indignation  in  a  way  that 
would  prejudice  the  jury  and  this  seems  to  be  entirely  correct. ^^ 
And  it  is  well  settled  that  every  appeal  by  the  court  to  the  passion 
or  prejudice  of  the  jury  should  be  promptly  rebuked,  for  it  is 

*  Oppenheim     v.     United     States,  States,  108  Fed.  804,  48  C.  C.  A.  36 

241  Fed.  625,  629,  154  C.  C.  A.  383  (4th     Cir.) ;      Cummins     v.     United 

(2d  Cir.).  States,  232  Fed.  844,  147  C.  C.  A.  38 

6  Rudd  V.  United  States,  173  Fed.  (8th  Cir.). 
912,  914,  97  C.  C.  A.  462  (8th  Cir.).  « pgrkins   v.    United   States,    228 

« Hicks  V.  United  States,  150  U.  S.  Fed.  408,  420,  142  C.  C.  A.  638  (4th 

442,  452,  37  L.  ed.  1137,  14  S.  C.  144 ;  Cir.). 

AlHson  r.  United  States,  160  U.  S.  203,  »  Hicks  v.  United  States,   150  U. 

207,  40  L.  ed.  395,  16  S.  C.  252.  S.  442,  37  L.  ed.  1137,  14  S.  C.  144. 

^  United    States    v.    Tenurck,    5  ^^  Hicks  v.  United  States,  supra. 

Cranch(C.  C.),562;  Breese  v.  United  ^^  Ibid. 

367 


§  439]  CHARGE   TO   JURY  [Chap.  XXXV 

obvious  that  the  jury  is  sensitive  to  the  court's  expression  of 
opinion  .^^ 

§  440.  Instructions  as  to  Defenses  Generally. 

A  defendant  in  a  criminal  case  is  entitled  to  have  the  court 
clearly  state  to  the  jury  each  distinct  and  important  theory  of 
defense,  so  that  the  jury  may  understand  that  theory  and  the 
essential  rules  of  law  applicable  thereto.^  The  failure  to  give  an 
instruction  limiting  the  purpose  for  which  particular  evidence  may 
be  considered  is  not  error,  where  such  instruction  is  not  specially 
requested.^ 

§  441.  Instructions  on  Presumption  of  Innocence. 

It  is  a  fundamental  principle  of  the  common  law  that  the 
burden  of  proving  the  defendant  guilty  as  charged  in  the  indict- 
ment beyond  a  reasonable  doubt  rests  upon  the  prosecution  and 
does  not  shift.^  Reasonable  doubt  of  guilt  may  exist,  though 
there  may  not  be  probability  of  innocence.^  All  defendants  are 
entitled  to  the  benefit  of  the  presumption  of  innocence  which 
continues  until  the  verdict  is  rendered  ^  and  it  is  error  to  charge 
that  the  jury  must  find  the  defendant  guilty  beyond  a  reasonable 
doubt  and  refuse  to  charge  as  to  the  legal  presumption  of  inno- 
cence."* When  testimony  contradictory  or  explanatory  of  infer- 
ences and  presumptions  claimed  to  flow  from  the  evidence  is 
introduced  by  the  defendant,  it  becomes  a  part  of  the  govern- 
ment's burden  of  proof  to  make  the  case  so  clear  that  there  is  no 

12  Reynolds  v.  United  States,   98  U.  S.  432,  39  L.  ed.  481,  15  S.  C.  394; 

U.  S.   145,  25  L.  ed.  244;    Hickory  Melton  v.   United  States,    120  Fed. 

V.  United  States,  160  U.  S.  408,  40  504,   57   C.   C.   A.    134    (5th   Cir.) ; 

L.  ed.  474,  16  S.  C.  327;    Foster  v.  Davis  v.  United  States,    160   U.   S. 

United  States,  188  Fed.  305,  110  C.  469,  40  L.  ed.  499,  16  S.  C.  353. 
C.  A.  283  (4th  Cir.).  2  Jordan   v.    State,    143   Ala.    13, 

§  440.   >  Hendrey  v.  United  States,  39  So.  411 ;    Wade  v.  State,  71  Ind. 

233  Fed.  5,  18,  147  C.  C.  A.  71  (6th  535. 

Cir.) ;    Patterson   v.   United   States,  ^  Agnew    v.    United    States,    165 

222  Fed.  599,  649,  138  C.  C.  A.  123  U.  S.  36,  41  L.  ed.  624,  17  S.  C.  235; 

(6th  Cir.).  Coffin  v.   United  States,    156  U.   S. 

^Hallowell  v.  United  States,  253  432,  39  L.  ed.  481,   15  S.  C.  394; 

Fed.  865,  —  C.  C.  A.  —  (9th  Cir.).  Hall  v.  United  States,  235  Fed.  869, 

§  441.    1  Wilson  v.  United  States,  149  C.  C.  A.  181  (9th  Cir.). 
232  U.  S.  563,  58  L.  ed.  728,  34  S.  C.  "  Cochran   v.    United   States,    157 

347;    Coffin   i;.    United   States,    156  U.  S.  286,  39  L.  ed.  704,  15  S.  C.  628. 
3G8 


Chap.  XXXV]  REASONABLE   DOUBT  —  DEFINED  [§  442 

reasonable  doubt  as  to  such  inferences  and  presumptions.^  The 
presumption  of  innocence  shields  a  corporation  to  the  same  extent 
that  it  shields  an  individual." 

§  442.  Reasonable  Doubt  —  Defined. 

A  reasonable  doubt  is  such  a  doubt  as  would  cause  a  prudent 
and  rational  man  to  pause  or  hesitate  to  act  in  the  determination 
of  any  of  the  affairs  of  life  of  the  highest  importance  to  himself.^ 
The  evidence  must  establish  the  truth  of  the  fact  to  a  reasonable 
and  moral  certainty,  a  certainty  that  convinces  and  directs  the 
understanding,  and  satisfies  the  reason  and  judgment  of  those  who 
are  bound  to  act  conscientiously  upon  it."  An  instruction  that  a 
reasonable  doubt  is  one  for  which  "  a  reason  could  be  given 
based  on  the  evidence  or  want  of  evidence  in  the  case  "  was  held 
to  be  improper  but  not  ground  for  reversal.^  The  court  in 
another  case  ^  held  the  following  charges  to  be  valid :  "  The 
court  charges  you  that  the  law  presumes  the  defendant  innocent 
until  proven  guilty  beyond  a  reasonable  doubt ;  that  if  you  can 
reconcile  the  evidence  before  you  upon  any  reasonable  hypothesis 
consistent  with  the  defendant's  innocence,  you  should  do  so,  and 
in  that  case  find  him  not  guilty.  You  are  further  instructed  that 
you  cannot  find  the  defendant  guilty,  unless  from  all  the  evidence 
you  believe  him  guilty  beyond  a  reasonable  doubt.  The  court 
further  charges  you  that  a  reasonable  doubt  is  a  doubt  based  on 
reason,  and  wdiich  is  reasonable  in  view  of  all  the  evidence.  And 
if,  after  an  impartial  comparison  and  consideration  of  all  the  evi- 
dence, you  can  candidly  say  that  you  are  not  satisfied  of  the 
defendant's  guilt,  you  have  a  reasonable  doubt ;   but  if  after  such 

*  Potter  V.  United  States,  155  U.  S.  *  Commonwealth    v.    Webster,    5 

438,  448,  39  L.  ed.  214,  15  S.  C.  144.  Cush.  (Mass.)  320. 

^  Interstate    Commerce    Commis-  ^  Griggs    v.    United    States,     158 

sion  V.  Chicago  G.  W.  R.  Co.,  209  Fed.  572,  85  C.  C.  A.  596  (9th  Cir.). 

U.  S.  108,  119,  52  L.  ed.  705,  712,  But  see  Pettine  v.  Territory  of  New 

28  S.  C.  493.  Mexico,  201  Fed.  489,  119  C.  C.  A. 

§  442.   1  Pettine    v.    Territory    of  581    (8th   Cir.),   where  it  was  held 

New  Mexico,  201  Fed.  489,  119  C.  C.  reversible  error. 

A.   581    (8th   Cir.) ;    Hopt  v.   Utah,  ^  Hopt  v.  Utah,  120  U.  S.  430,  30 

120  U.  S.  430,  30  L.  ed.  708,  7  S.  C.  L.  ed.  708,  7  S.  C.  614. 
614;    Maupin  v.  United  States,  258 
Fed.  607,  —  C.  C.  A.^—  (4th  Cir.). 

VOL.  1  —  24  369 


\ 


§  442]  CHARGE   TO   JURY  [Chap.  XXXV 

impartial  comparison  and  consideration  of  all  the  evidence,  you 
can  truthfully  say  that  you  have  an  abiding  conviction  of  the 
defendant's  guilt,  such  as  you  would  be  willing  to  act  upon  in  the 
more  weighty  and  important  matters  relating  to  your  own  affairs, 
you  have  no  reasonable  doubt."  The  following  definition  of 
reasonable  doubt  was  held  to  be  objectionable :  "  A  reasonable 
ground  of  doubt  is  one  which  is  reasonable  from  the  evidence  or 
want  of  evidence.  It  must  be  a  ground  of  doubt  for  which  a  reason 
can  be  given,  which  reason  must  be  based  upon  the  evidence  or 
want  of  evidence."  ^  However,  it  may  be  said  as  a  general 
rule,  that  definitions  approved  in  some  courts  have  been  held  rever- 
sible error  in  others.  The  difficulty  lies  in  explaining  words  which 
perhaps  define  themselves  better  than  can  be  done  by  any  para- 
phrase or  elucidation.  Consequently  there  is  hopeless  confusion 
in  the  adjudicated  cases  as  to  the  definition  of  reasonable  doubt. 
Mr.  Justice  Woods  said :  "  Attempts  to  explain  the  term  '  reason- 
able doubt '  do  not  usually  result  in  making  it  any  clearer  to  the 
minds  of  the  jury."  ^ 

§  443.  Failure  of  a  Defendant  to  Testify. 

The  policy  of  the  enactment  that  a  defendant  shall,  at  his  own 
request  and  not  otherwise,  be  a  competent  witness  should  not 
be  defeated  by  hostile  comments  of  a  trial  judge  whose  duty  it  is 
to  give  reasonable  effect  and  force  to  the  law.^  The  wise  and 
humane  provision  of  the  law  is  that  the  person  charged  shall, 
at  his  own  request,  but  not  otherwise,  be  a  competent  witness.^ 
The  rule  is  universal  that  the  neglect,  failure  or  even  refusal  of  a 
defendant  to  avail  himself  of  his  right  to  testify  in  his  own  behalf 
must  not  provoke  comment.^  Any  comment  which  is  manifestly 
designed  to  direct  attention  of  the  jury  to  the  defendant's  failure 

"  Owens    V.    United    States,    130  United  States  v.  Wetmore,  218  Fed, 

Fed.  279,  64  C.  C.  A.  525  (9th  Cir.).  237. 

«  Miles  V.  United  States,   103  U.  ^  Hicks  v.  United  States,   150  U. 

S.  312,  26  L.  ed.  481.  S.  1442,  37   L.    ed.    1132,    14  S.    C. 

§  443.   '  Ilicks   V.   United   States,  144. 

150  U.  S.  442,  37  L.  ed.   1132,   14  ^  Diggs    v.     United    States,     220 

S.  C.  144  ;    Diggs  t;.  United  States,  Fed.  545,  137  C.  C.  A.  113  (9th  Cir.) ; 

220    Fed.    545,    137    C.    C.    A.    113  Brown   v.    Walker,    161    U.    S.    591, 

(9th   Cir.) ;    Brown  v.   Walker,    161  40  L.  ed.  819,  16  S.  C.  644 ;   United 

U.  S.  591,  40  L.  ed.  819,  16  S.  C.  644 ;  States  v.  Wetmore,  218  Fed.  227. 
370 


Chap.  XXX V]  CHARACTER  [§  445 

to  testify,  or  necessarily  resulting  so,  is  reversible  error.^  The 
statute  ^  restrains  both  court  and  counsel  from  commenting  on  the 
failure  of  the  accused  to  testify.®  But  charging  the  jury  that 
certain  testimony  has  not  been  contradicted  does  not  call  the 
attention  of  the  jury  to  the  fact  that  defendant  did  not  testify/ 

§  444.   Flight  of  Defendant. 

An  instruction  to  the  jury  that  the  flight  of  the  accused  person 
was  a  fact  for  the  jury's  consideration  was  held  to  be  a  proper 
instruction ;  ^  but  where  the  jury  was  told  that  the  flight  of  the 
defendant  was  a  silent  admission  of  his  guilt,^  or  that  the  wicked 
flee  when  no  man  pursueth,  but  the  innocent  are  as  bold  as  a 
lion,^  were  held  erroneous  because  the  jury  were  in  substantial 
effect  told  that  the  defendant's  flight  was  in  a  sense  a  confession 
of  his  guilt.^ 

§  445.   Character. 

The  defendant  is  entitled  to  a  legal  presumption  that  his 
character  is  good.  Where  the  defendant  failed  to  introduce 
any  evidence  as  to  his  good  character,  it  was  held  improper  for 
the  district  attorney  to  appeal  to  the  jury  to  assume  that  the 
defendant's  character  was  bad  because  he  failed  to  prove  the 
contrary.^     In  criminal  prosecutions,  the  accused  will  be  allowed 

*  Wilson    V.    United    States,     149  2  gtarr  v.   United  States,    164  U. 

U.  S.  60,  37  L.  ed.  650,  13  S.  C.  765 ;  S.  627,  41  L.  ed.  577,  17  S.  C.  223. 

Stout  V.  United  States,  227  Fed.  799,  »  Hickory    v.    United   States,    160 

142  C.  C.  A.  323   (8th  Cir.)  ;    Shea  U.  S.  408,  40  L.  ed.  474,  16  S.  C. 

V.  United  States,  251  Fed.  440,  445,  327. 

163  C.  C.  A.  458  (6th  Cir.);    Mc-  "Allen  v.  United  States,   164  U. 

Ivnight  V.   United  States,   115  Fed.  S.  492,  499,  41  L.  ed.  528,  17  S.  C. 

972,  981,  54  C.  C.  A.  358  (6th  Cir.).  154;    Alberty  v.  United  States,  162 

^  Act  of  March  16,  1878,  ch.  37,  U.  S.  499,  509,  40  L.  ed.   1051,   16 

20  Stat.  L.  30  (3  U.  S.  Comp.  St.  S.  C.  864. 

1916,  §  1465).  §  445.    '  Hall  v.  United  States,  256 

6  Stout     V.     United     States,     227  Fed.  748  (C.  C.  A.  4th  Cir.) ;  Lowden 

Fed.  799,  142  C.  C.  A.  323  (8th  Cir.) ;  v.  United  States,   149  Fed.  673,  79 

Wilson  V.  United  States,   149  U.  S.  C.   C.   A.   361    (5th   Cir.);    Higgins 

60,  37  L.  ed.  650,  13  S.  C.  765.  v.  United  States,  185  Fed.  710,  108 

'•Sidebotham    v.    United    States,  C.  C.  A.  48   (6th  Cir.);    Dimmick 

253  Fed.  417  (9th  Cir.).  t-.  United  States,   121  Fed.  638,  57 

§  444.   1  Stewart  v.  United  States,  C.  C.  A.  664  (9th  Cir.) ;    Mullen  v. 

211  Fed.  41,  127  Q.  C.  A.  477  (9th  United  States,  106  Fed.  892,  46  C. 

Cir.).                        "  C.  A.  22  (6th  Cir.). 

371 


§  445]  CHARGE   TO    JURY  [Chap.  XXXV 

to  call  witnesses  to  show  that  his  character  was  such  as  would  make 
it  unlikely  that  he  would  be  guilty  of  the  particular  crime  with 
which  he  is  charged.^  A  good  reputation  alone  may  create  a 
reasonable  doubt.  A  defendant  is  entitled  to  a  specific  instruction 
on  that  point.  Character  evidence  cannot  be  considered  on  the 
the  same  basis  as  evidence  relating  to  substantive  facts.^  And 
unless  the  accused  has  introduced  evidence  of  his  good  character, 
the  prosecution  cannot  introduce  evidence  of  bad  character  and 
habits  as  part  of  the  case.^  The  courts  now  hold  that  in  a  crimi- 
nal case  where  no  evidence  in  regard  to  defendant's  character  was 
offered,  there  is  no  presumption  that  his  character  is  good  and  he 
is  not  entitled  to  such  an  instruction.^  These  cases  thereby  super- 
sede the  contrary  rule  laid  down  in  an  earlier  case.^ 

§  446.   Exceptions  to  Charge. 

The  rule  in  relation  to  exceptions  to  instructions  is  that  the 
matter  excepted  to  shall  be  so  brought  to  the  attention  of  the 
court  before  the  retirement  of  the  jury  as  to  enable  the  judge  to 
correct  his  instructions.^  A  defendant  on  trial  on  a  criminal 
charge  must  endeavor  to  secure  a  ruling  upon  the  various  points 

2  Edgington  v.  United  States,  164  153  C.  C.  A.  246  (8th  Cir.),  affirmed, 
U.  S.  361,  41  L.  ed.  467,  17  S.  C.  72 ;  245  U.  S.  559,  62  L.  ed.  469,  38  S.  C. 
Le  More  v.  United  States,  253  Fed.  209;  Chambliss  v.  United  States, 
887  (5th  Cir.).  218  Fed.  154,  132  C.  C.  A.  112  (8th 

3  Snitkin  v.  United  States  (C.  C.  Cir.) ;  Price  v.  United  States,  218 
A.  7th  Cir.,  March  30,  1920)  ;  citing:  Fed.  149,  132  C.  C.  A.  1  (8th  Cir.). 
Edgington  v.  United  States,  164  U.  S.  «  Mullen  v.  United  States,  106 
361,  41  L.  ed.  464,  17  S.  C.  72.  The  Fed.  892,  46  C.  C.  A.  22  (6th  Cir.). 
Court  cannot  limit  the  number  of  wit-  §  446.  ^  Hickory  v.  United  States, 
nesses  on  the  part  of  the  defendant  to  160  U.  S.  408,  40  L.  ed.  474,  16  S.  C. 
prove  good  character.  People  v.  Min-  •  327 ;  Lewes  v.  United  States,  146 
sky,  227  N.  Y.  94;  State  t;.  Randall,  U.  S.  370,  36  L.  ed.  1011,  13  S.  C. 
173  N.  W.  (Minn.)  425.  And  see  also,  136;  Western  Union  Telegraph  Co. 
generally,  Carrara  Paint  Co.  Agency  v.  Baker,  85  Fed.  690,  29  C.  C.  A. 
i;.  Carrara  PaintCo.,  137  Fed.  319  and  392  (9th  Cir.);  Copper  River  &  N. 
cases  collected  in  8  Ann.  Cas.  828.  W.  Ry.  Co.  v.  Heney,  211  Fed.  459, 

*  Gordon    v.    United    States,    254  128  C.  C.  A.  131  (9th  Cir.) ;  Arizona 

Fed.    53,    54    (5th    Cir.) ;     Williams  &  N.  M.  Ry.  Co.  v.  Clark,  207  Fed. 

V.  United  States,  168  U.  S.  382,  42  817,   125  C.   C.  A.   ,305   (9th  Cir.); 

L.  ed.  509,  18  S.  C.  92.  Riddell  v.   United  States,   244   Fed. 

'  Dc  Mess  V.  United  States,  250  695,   157  C.  C.   A.   143   (9th  Cir.) ; 

Fed.  87,  162  C.  C.  A.  259  (8th  Cir.) ;  Gilson   v.   United   States,    258   Fed. 

Greer  v.  United  States,  240  Fed.  320,  588,  —  C.  C.  A.  —  (2d  Cir.). 
372 


Chap.  XXXV]  EXCEPTIONS  TO   CHARGE  [§  44G 

raised  or  objected  to  by  him  from  the  presiding  judge  and  in- 
corporate same  in  a  bill  of  exceptions.^  The  parts  of  the  charge 
excepted  to  must  be  read  in  conjunction  with  the  paragraph 
following  the  same  parts  excepted  to,  when  they  relate  to  and  are 
explanatory  of  the  same  subject  matter.^  Appellate  courts  are 
not  inclined  to  grant  a  new  trial  on  account  of  an  ambiguity  in 
the  charge  to  the  jury  where  it  appears  that  the  complaining 
party  made  no  reasonable  effort  at  the  trial  to  have  the  matter 
explained,  except  where  the  court  is  of  the  opinion  that  the  jury 
was  misled  or  wrongly  directed.^  Where  no  exceptions  are  taken 
to  the  instructions  while  the  jury  is  at  bar,  the  reviewing  court  is 
not  required  to  consider  them ;  but  in  criminal  cases  the  courts 
are  not  inclined  to  be  so  exacting  and  sometimes  will,  in  the  exercise 
of  a  sound  discretion,  notice  error  in  the  trial  of  a  criminal  case 
although  no  objection  was  made  while  the  jury  was  at  bar.^ 
The  giving  and  refusing  of  instructions  cannot  be  reviewed  unless 
the  evidence  is  preserved  by  a  bill  of  exceptions.''  The  extent  to 
which  the  recent  Act  of  Congress  ^  has  abrogated  the  rules  as  to 
exceptions  has  not  been  determined  by  the  Supreme  Court  of  the 
United  States.  It  is  suggested  that  counsel  continue  to  take  excep- 
tions as  before,  and  that  the  effect  of  the  act  may  be  to  aid  a 
party  in  an  unfortunate  and  unjust  situation  created  by  not  having 
taken  an  exception. 

2  Allis  V.  United  States,  155  U.  S.  U.  S.  207,  221,  49  L.  ed.  726,  25 
117,  39  L.  ed.  91,  15  S.  C.  36 ;  Arizona  S.  C.  429 ;  Wiborg  v.  United  States, 
&  N.  M.  Ry.  Co.  V.  Clark,  207  Fed.  163  U.  S.  632,  41  L.  ed.  289,  16  S. 
817,  125  C.  C.  A.  305  (9th  Cir.).  C.  1127;   Crawford  v.  United  States, 

3  Coffin  V.  United  States,  162  212  U.  S.  183,  194,  53  L.  ed.  465, 
U.  S.  664,  40  L.  ed.  1109,  16  S.  C.  29S.  C.260;  Weems  t;.  United  States, 
943 ;  Agnew  v.  United  States,  165  217  U.  S.  349,  54  L.  ed.  793,  30  S.  C. 
U.  S.  36,  41  L.  ed.  624,  17  S.  C.  235 ;  544 ;  Williams  v.  United  States,  158 
Walsh  V.  United  States,  174  Fed.  Fed.  30,  36,  88  C.  C.  A.  296  (8th 
615,  98  C.  C.  A.  461  (7th  Cir.).  Cir.). 

^Spring  Co.  v.  Edgar,  99  U.  S.  « Duluth  St.  Ry.  Co.  v.  Speaks, 

645,  25  L.  ed.  478 ;  Castle  v.  Bullard,  204  Fed.  573,  123  C.  C.  A.  99  (8th 

23  How.  (U.  S.)  172,  16  L.  ed.  424 ;  Cir.) ;      Robinson    v.     Stearns,     204 

Allis  V.  United  States,  155  U.  S.  117,  Fed.  772,  123  C.  C.  A.  222  (3d  Cir.) ; 

39  L.  ed.  91,  15  S.  C.  36;   Beckwith  Cooper  River  &  N.  W.  Ry.  Co.  v. 

V.  Bean,  98  U.  S.  266,  284,  25  L.  ed.  Reeder,  211  Fed.  280,  127  C.  C.  A. 

124.  648  (9th  Cir.). 

6  Clyatt    V.    United    States,    197  ^  Act  of  February  26,  1919. 

373 


CHAPTER  XXXVI 

VERDICT 

§  447.       Keeping  the  Jury  Together. 

§  448.      In  Cases  of  Disagreement  or  Failure  to  Agree. 

§  449.       Coercing  the  Jury  to  Return  a  Verdict. 

§  450.  Misconduct  in  Jury  Room  —  Newspaper  Articles  before  Jury  after 
Retiring. 

§  450  a.   Misconduct  in  Jury  Room,  Continued  —  Sending  Exhibits  to  Jury. 

§  451.      Inconsistent  and  Repugnant  Verdict. 

§  452.  May  Be  Found  Guilty  of  an  Attempt  instead  of  a  Consummated 
Offense. 

§  453.       "Attempts"  and  the  Doctrine  of  "Locus  Penitentise." 

§  454.      Where  Several  Defendants  Are  on  Trial. 

§  455.      Effect  of  Verdict  Silent  as  to  Some  Counts. 

§  456.  Presence  of  the  Accused  Required  at  Rendition  of  Verdict  —  Ex- 
ception. 

§  447.  Keeping  the  Jury  Together. 

The  Seventh  Amendment  to  the  Constitution  of  the  United 
States  exacts  a  trial  by  jury  according  to  the  course  of  the  common 
law,  that  is,  by  an  unanimous  verdict.^  The  Seventh  Amendment 
applies  only  to  proceedings  in  courts  of  the  United  States  and  does 
not  in  any  manner  whatever  govern  or  regulate  trials  by  jury  in 
State  courts  or  the  standards  which  must  be  applied  concerning 
the  same.^  In  all  felony  cases  the  jury  must  be  kept  together  until 
a  verdict  is  reached  or  discharged  by  the  Court.^  If  a  jury  in  a 
criminal  case  during  the  progress  of  the  trial  separate  without 
authority  of  the  court,  their  verdict  will   be  set  aside,  where  it 

§  447.    1  American  Publishing  Co.  R.   R.   Co.   v.   Bombolis,   241   U.   S. 

V.  Fisher,   166  U.  S.  464,  41  L.  cd.  211,  60  L.  ed.  961,  36  S.  C.  595. 

1079,    17  S.   C.   618;    Springvillc  v.  2  Minneapolis  &  St.  L.  R.  R.  Co. 

Thomas,  166  U.  S.  707,  41  L.  cd.  1172,  v.  Bombolis,  241  U.  S.  211,  60  L.  ed. 

17  S.  C.  717;    Capital  Traction  Co.  961,  36  S.  C.  595. 

V.  Iloff,  174  U.  S.  1,  43  L.  ed.  873,  ^  chitty  Cr.  Law,  628. 
19  S.  C.  580 ;    Minneapolis  &  St.  L. 
374 


Chap.  XXXVI]     COERCING  THE  JURY  TO  RETURN  A  VERDICT      [§  449 

appears  that  in  consequence  of  such  separation  they  were  exposed 
to  improper  influences  which  might  have  operated  to  the  prejudice 
of  the  accused  in  such  manner  as  to  affect  their  verdict.'*  But 
the  jury  by  consent  may  bring  in  a  sealed  verdict.^  A  verdict 
will  not  be  set  aside  for  the  failure  of  the  marshal  to  take  the 
oath  before  taking  the  jury  to  the  jury  room  for  deliberation.^ 

§  448.  In  Cases  of  Disagreement  or  Failure  to  Agree. 

It  is  improper  for  the  court  and  it  constitutes  reversible  error 
to  inquire  of  the  jury,  when  they  report  that  they  are  unable  to 
agree,  how  the  jury  is  divided.^  It  is,  however,  proper  to  recall  a 
jury  after  they  have  been  in  deliberation  for  the  purpose  of  giving 
additional  instructions.  A  refusal  to  again  charge  or  instruct 
the  jury  after  the  latter's  request  for  instructions  on  material 
points  is  reversible  error.^  When  the  jury  returns  to  court 
for  further  instruction,  if  the  defendant  requests  it,  it  is  the  duty 
of  the  court  to  instruct  that  such  portions  of  the  charge  of  the 
court  which  were  given  at  the  request  of  the  defendant  were  as 
material  as  those  of  the  prosecution  and  a  failure  to  so  charge  the 
jury  constitutes  reversible  error .^  The  court  has  power  to  recall 
the  jury  for  further  instructions.^ 

§  449.   Coercing  the  Jury  to  Return  a  Verdict. 

A  trial  judge  has  no  right  to  coerce  the  jury  after  the  jury 
is  out  for  a  considerable  time  to  arrive  at  a  verdict.  The  court 
has  the  right  to  ask  the  jury  to  reach  an  agreement  if  it  is  possible 
for  them  to  do  so,  but  the  remarks  must  not  be  coercive  nor  is  it 
proper  for  the  court  to  refer  to  the  expense  that  the  Government 
will  be  put  to  if  the  jury  disagree.^  It  is  proper  for  the  court 
to  instruct  the  jury  in  substance,  that  in  a  large  proportion  of 
cases  absolute  certainty  could  not  be  expected ;  that  although  the 

*  Russel  V.  People,  44  111.  508.  ^  jbi^j^ 

'    6  Pounds    V.    United    States,    171  ^  Allis   v.   United   States,    155    U. 

V.  S.  35,  43  L.  ed.  62,  18  S.  C.  729.  S.  117,  39  L.  ed.  91,  15  S.  C.  36; 

«  Ball   V.    United    States,    163    U.  Allen  v.  United  States,  164  U.  S.  492, 

S.  662,  41  L.  ed.  300,  16  S.  C.  1192.  41  L.  ed.  528,  17  S.  C.  154. 

§  448.    1  Burton  v.  United  States,  §  449.    i  Peterson  v.  United  States, 

196  U.  S.  283,  49  L.  ed.  482,  25  S.  C.  213  Fed.  920,  130  C.  C.  A.  398  (9th 

243.                                 ^  Cir.) ;    Burton  v.  United  States,  196 

2  Burton  v.  United  'States,  supra.  U.  S.  283,  49  L.  ed.  482,  25  S.  C.  243. 

375 


§  449]  VERDICT  [Chap.  XXXVI 

verdict  must  be  the  verdict  of  each  individual  juror,  and  not  a 
mere  acquiescence  in  the  conclusion  of  his  fellows,  yet  they  should 
examine  the  question  submitted  with  candor  and  with  a  proper 
regard  and  deference  to  the  opinions  of  each  other;  that  it  was 
their  duty  to  decide  the  case  if  they  could  conscientiously  do  so ; 
that  they  should  listen,  with  a  disposition  to  be  convinced,  to 
each  other's  arguments ;  that,  if  much  the  larger  number  were  for 
conviction,  a  dissenting  juror  should  consider  whether  his  doubt 
was  a  reasonable  one  which  made  no  impression  upon  the  minds 
of  so  many  men,  equally  honest,  equally  intelligent  with  himself. 
If,  upon  the  other  hand,  the  majority  was  for  acquittal,  the  minor- 
ity ought  to  ask  themselves  whether  they  might  not  reasonably 
doubt  the  correctness  of  a  judgment  which  was  not  concurred 
in  by  the  majority.^  But  care  should  be  taken  that  the  verdict 
truly  represents  the  free  and  untrammeled  opinion  of  the  individual 
jurors,  and  the  defendant  is  entitled  to  an  instruction  that, 
while  it  is  the  duty  of  each  juror  to  discuss  and  consider  the  opinion 
of  others,  he  must  decide  the  case  upon  his  own  opinion  of  the 
evidence  and  upon  his  own  judgment.^ 

§  450.  Misconduct  in  Jury  Room  —  Newspaper  Articles  before 
Jury  after  Retiring. 

It  is  improper  for  a  jury  to  read  newspaper  comments  upon  the 
case  upon  which  they  are  about  to  deliberate.  A  violation  of 
this  rule  is  good  cause  for  setting  the  verdict  aside,^  but  it  has  been 
held  that  where  after  interrogating  the  jury  the  court  was  satis- 
fied that  the  newspaper  comments  had  not  the  slightest  influence 
upon  the  jury,  the  verdict  will  not  be  set  aside  for  such  impro- 
priety.^ The  misconduct  of  one  of  the  jurors  in  obtaining  a  volume 
of  the  Federal  Statutes  while  the  jury  was  deliberating  on  the  case 
was  held  not  to  be  ground  for  reversal.^  "  A  verdict  is  the  ex- 
pression of  the  concurrence  of  individual  judgments,  rather  than 

2  Allan  V.  United  States,  164  U.  167  Fed.  951,  93  C.  C.  A.  351  (3d 
S.  492,  41  L.  ed.  528,  17  S.  C.  154.  Cir.). 

3  People  V.  Faber,  199  N.  Y.  256,  2  Marrin  v.  United  States,  167 
92  N.  E.  674;  People  v.  Sheldon,  Fed.  951,  93  C.  C.  A.  351  (3d  Cir.). 
156  N.  Y.  268.  » Colt  v.  United  States,  190  Fed. 

§  450.  1  Mattox  v.  United  States,  305,  111  C.  C.  A.  205  (8th  Cir.) ;  Cer- 
146  U.  S.  140,  36  L.  ed.  917,  13  S.  tiorari  denied,  223  U.  S.  729,  56  L. 
C.    50;     Marrin   v.    United    States,      ed.  633,  32  S.  C.  527. 

376 


Chap.  XXXVI]     MISCONDUCT   IN   JURY   ROOM,    CONTINUED      [§  450  a 

the  product  of  mixed  thoughts.  It  is  not  the  theory  of  jury  trials 
that  the  individual  conclusions  of  the  jurors  should  be  added  up, 
the  sum  divided  by  twelve,  and  the  quotient  declared  the  verdict, 
but  that  from  the  testimony  each  individual  juror  should  be  led 
to  the  same  conclusion ;  and  this  unanimous  conclusion  of  twelve 
different  minds  is  the  certainty  of  fact  sought  in  the  law."  ^  A 
juror  has  no  right  to  bring  his  personal  knowledge  of  fact  into  the 
jury  room,  and  it  is  proper  for  the  court  to  hear  evidence  as  to 
what  has  transpired  and  set  aside  the  verdict  of  guilty  for  that 
reason.^  But  ordinarily  testimony  of  fellow  jurors  will  not  be 
heard  to  impeach  their  verdict.*^  On  a  motion  for  new  trial  the 
question  is  not  the  inviolability  of  the  matters  and  things  which 
have  transpired  in  the  jury  room,  but  the  legal  effect  to  be  given 
them  in  setting  aside  the  verdict.^ 

§  450  a.  Misconduct  in  Jury  Room,  Continued.  —  Sending  Ex- 
hibits to  Jury. 

It  is  usually  improper  to  let  the  jury  take  the  testimony  of 
books,  papers  and  depositions  or  other  exhibits  with  them  to  the 
jury  room.  The  jury  are  to  receive  the  testimony  in  open  court .^ 
Under  the  common  law  instruments  under  seal,  and  which  were 
admitted  in  evidence,  could  be  sent  to  the  jury,  while  all  other 
documents,  not  under  seal,  could  not  be  sent  to  the  jury  room.^ 
There  being  no  statute  on  the  subject  the  common  law  rule  must 
control  the  practice  in  the  Federal  Court  .^  It  is  improper  for 
the  jury  to  discuss  the  defendant's  failure  to  testify  or  the  fact 

*  Brewer,   J.   State   v.   Bydee,    17  Mich.  311 ;  Kalamazoo  Novelty  Mfg. 

Kansas,   4G2,   approved  in  People  v.  Co.  v.  McAllister,  36  Mich.  327 ;  Bur- 

Faber,  199  N.  Y.  256,  259.  ton  v.  WUkes,  66  N.  C.  604 ;  Williams 

estate  V.  Lorenzy,  109  Pac.  1064  v.  Thomas,  78  N.  C.  47;    Outlaw  i-. 

(Tex.    Crim.    App.) ;     Richmond    v.  Hurdle,  1  Jones  (N.  C),  150 ;  Watson 

States,  127  S.  W.  823 ;  People  ?;.  Zei-  v.  Davis,  7  Jones  L.   (N.  C),  178; 

ger,  6  Park  (N.  Y.),  355 ;  Falls  v.  City  Nichols  v.  State,  65  Ind.  512. 
of  Sperry,  68  Nebr.  420,  94  N.  W.  529.  ^  1  Gilb.  Ev.  (Lofft.  5th  Ed.)  20 ;  2 

6  McDonald  v.   Pless,   238  U.   S.  Rol.  Abr.  686,  pi.  2  ;  2  Hale  P.  C.  306 ; 

264,  59  L.  ed.  1300,  35  S.  C.  783.  Trials  per  Pais,  297 ;  Farmers  Bank  v. 

M  Greenl.  Evidence  (16th  Ed.),  Whinfield,24  Wend.  (N.  Y.)  419;  Out- 

§  252  a.  law  v.  State,  1  Jones  L.  (N.  C.)  150, 

§  450  a.   ^  Ramford   v.    State,    61  approved,  in  78  N.  C.  47 ;  Nichols  v. 

111.  365 ;  Chadwick  v.  Chadwick,  52  State,  65  Ind.  512. 
Mich.  549 ;    Bullan   v.  'Granger,  63  '  See  §  10  supra. 

377 


§  450  a]  VERDICT  [Chap.  XXXVl 

that  the  defendant  abandoned  his  wife,  and  such  misconduct  is 
ground  for  a  new  trial. ^ 

§451.  Inconsistent  and  Repugnant  Verdict. 

Where  the  essence  of  the  oftense  is  stated  in  several  counts  an 
acquittal  of  one  is  necessarily  an  acquittal  of  the  other  and  a  verdict 
finding  the  defendant  not  guilty  on  one  count  and  guilty  on  the 
other  will,  under  these  circumstances,  be  set  aside  —  one  operating 
as  a  bar  to  a  conviction  on  the  other .^  The  Federal  Courts  have 
repudiated  the  technical  doctrine  of  inconsistency  and  repugnancy 
in  verdicts.  In  theory  of  law  each  count  charges  a  distinct  sub- 
stantive offense,  and  the  finding  of  the  jury  as  to  a  particular 
count  is  independent  of  and  unaffected  by  the  finding  upon  any 
other  count.^  If  the  gravamen  of  the  charge  in  each  count, 
on  which  there  has  been  a  verdict  of  guilty,  is  the  same,  there  is 
no  inconsistency  in  the  verdict.  If,  in  contemplation  of  law,  the 
legal  effect  of  the  allegations  in  the  various  counts  on  which  there 
has  been  a  verdict  of  guilty  is  the  same,  the  courts  will  not  upset 
the  verdict  on  the  ground  of  inconsistency,  where  the  only  in- 
consistency is  in  respect  to  immaterial  particulars  concerning  the 
means  by  which  the  crime  was  committed.^  But  if  the  indictment 
states  in  different  counts  several  distinct  offenses,  a  general  verdict 
of  guilty  will  not  be  upheld  if  the  evidence  is  insuflBcient  to  sustain 
each  and  every  count  of  the  indictment.^  The  recommendation 
of  mercy  oftentimes  incorporated  in  verdicts,  while  entitled  to 
great  weight,  is  not  binding  on  the  court.^ 

§  452.  May  Be  Found  Guilty  of  an  Attempt  instead  of  a  Con- 
summated Offense. 

The  statute  provides :  "In  all  criminal  causes  the  defendant  may 
be  found  guilty  of  any  offense  the  commission  of  which  is  neces- 

'       <  Fuller  V.  State,  58  Tex.  Cr.  Rep.  1,  79  C..C.  A.  515  (6th  Cir.) ;  Certioran 

571,  127  S.  W.  1150.  denied  204  U.  S.  671,  51  L.  ed.  673, 

§451.   1  State    v.    Hendrick,    179  27  S.  C.  783;  Harvey  ?;.  United  States, 

Mo.  300.     See  aUo  concurring  opinion  159  Fed.  419, 86  C.  C.  A.  399  (3d  Cir.). 
of  Judge  Sanborn  in  Peara  v.  United  ^  Walsh  v.  United  States,  174  Fed. 

States,  221  Fed.  213,  136  C.  C.  A.  615,  620,  98  C.  C.  A.  561  (7th  Cir.) ; 

623  (8th  Cir.).  Flickinger  v.  United  States,  150  Fed. 

2  Walsh  V.  United  States,  174  Fed.  1,  79  C.  C.  A.  515  (0th  Cir.). 
615,  620,  98  C.  C.  A.  461  (7th  Cir.) ;  '  Burt  v.  State,  48  S.  851  (Ala.). 

Flickinger  v.  United  States,  150  Fed.  ^  Jones  v.  State,  7  Ga.  App.  825. 

378 


Chap.  XXXVI]  ATTEMPTS  [§  452 

sarily  included  in  that  with  which  he  is  charged  in  the  indictment, 
or  may  be  found  guilty  of  an  attempt  to  commit  the  offense  so 
charged;  provided,  that  such  attempt  be  itself  a  separate 
offense."  ^  Under  this  statute  it  was  held  that  there  must  be 
some  evidence  that  bears  upon  the  questions  of  attempt.  The 
jury  would  not  be  justified  in  finding  a  verdict  of  manslaughter 
if  there  were  no  evidence  on  which  to  base  such  a  finding  and  in 
that  event  the  court  would  have  the  right  to  instruct  the  jury  to 
that  effect.^  The  statute  applies  to  offenses  other  than  murder. 
Thus,  on  an  indictment  for  assault  with  the  intent  to  kill  a  con- 
viction was  secured  for  simple  assault.^  The  court  went  so  far  as  to 
hold  that  on  an  indictment  for  burglary  the  jury  may  find  the 
prisoner  guilty  of  larceny  only."*  The  latter  part  of  the  statute, 
which  permits  a  finding  of  an  attempt  to  commit  the  offense  so 
charged,  is  but  a  subdivision  of  the  first  part  of  the  statute.  An 
attempt  to  commit  a  crime  bears  to  the  said  crime  the  relation 
of  an  offense  necessarily  included  therein.^  It  was  accordingly 
held  that  a  charge  of  a  monopoly  in  violation  of  the  Anti-Trust 
Act,  Sec.  1,  will  support  a  verdict  against  a  defendant  for  an  attempt 
to  commit  this  crime.  This  section  does  not  apply  to  mis- 
demeanors, because  the  doctrine  of  merger  of  offenses  does  not 
apply  to  petty  crimes.^  Under  this  statute  a  defendant  charged 
in  the  indictment  with  the  crime  of  murder  may  be  found  guilty 
of  a  lower  grade  of  crime,  viz. :  manslaughter.'^  It  is  competent 
for  a  jury  by  its  verdict  to  render  a  verdict  of  guilty  without 
capital  punishment.^ 

§  452.   1  Revised  Statute  §  1035.  U.  S.  134,  38  L.  ed.  936,  14  S.  C. 

2  Sparf  &  Hansen  v.  United  States,  1002 ;  United  States  v.  Linnier,  125 
156  U.  S.  51,  39  L.  ed.  343,  15  S.  C.  Fed.  83;  Wallace  v.  United  States, 
273 ;  United  States  v.  Carr,  1  Woods,  162  U.  S.  466,  40  L.  ed.  1039,  16  S. 
480,  25  Fed.  Cas.  No.  14732 ;  United  C.  859 ;  United  States  v.  Leonard,  2 
States  V.  Hansee,  79  Fed.  303.  Fed.  669 ;    United  States  v.  Meagher, 

3  United  States  v.  Cropley,  4  Cr.  37  Fed.  875 ;  United  States  v.  Lewis, 
C.  C.  517,  25  Fed.  Cas.  No.  14892.  Ill  Fed.  630. 

*  United  States  v.  Dixon,  1  Cr.  C.  « Winston  v.  United  States,  172 
C.  414,  25  Fed.  Cas.  No.  14968.              U.  S.  303,  43  L.  ed.  456,  19  S.  C.  212. 

5  United  States  v.  Patterson,  201  §  453.   ^  Wilson  v.  United  States, 

Fed.  697.  232  U.  S.  563,  58  L.  ed.  728,  34  S.  C. 

*  Berkowitz  v.  United  States,  93  349;  Keck  v.  United  States,  172 
Fed.  452,  35  C.  C.  A.  379^  (3d  Cir.).  U.  S.  434,  43  L.  ed.  505,  19  S.  C.  254; 

^  St.  Clair  v.  United  States,   154      United  States  v.  Stephens,  8  Sawy. 

379 


§  453]  VERDICT  [Chap.  XXXVl 

§  453.  "  Attempts  "  and  the  Doctrine  of  "  Locus  Penitentiae." 
The  doctrine  of  lociis  penitenticB  has  been  recognized  generally 
in  the  United  States.^  The  general  presumption  exists  "  that  a 
person  intends  the  natural  and  probable  consequences  of  acts 
intentionally  done,  and  that  an  unlawful  act  implies  an  unlawful 
intent."  ^  But  a  mere  intention  to  commit  a  crime  is  not  punish- 
able unless  followed  by  some  overt  act.  Consequently  a  party 
cannot  be  held  for  an  offense  if  he  voluntarily  abandons  the  plan 
or  scheme  to  commit  that  offense  before  its  execution.^  In  other 
words,  to  entitle  the  government  to  maintain  a  prosecution  for  an 
evil  intention,  some  concurring  act  must  have  followed  the 
unlawful  thought.  A  mere  unexecuted  intention  does  not  bind  or 
commit  the  person  who  conceives  or  indulges  in  it.  So,  if  a  party 
abandons  his  evil  intention  at  any  time  before  so  much  of  the  act 
is  done  as  constitutes  a  crime,  such  abandonment  takes  from  what 
has  been  done  its  indictable  qualities.^  Mere  solicitation  to  com- 
mit an  offense  is  not  indictable.^  Thus,  in  Keck  v.  United  States,^ 
it  was  held  that  mere  acts  of  concealment  of  merchandise  on 
entering  the  waters  of  the  United  States,  however  preparatory 
they  may  be  and  however  cogently  they  may  indicate  an  intention 
of  thereafter  smuggling  or  clandestinely  introducing,  at  best  are 
but  steps  or  attempts  not  alone  in  themselves  constituting  smug- 
gling or  clandestine  introduction.  As  the  offense  of  smuggling 
is  not  complete  unless  some  goods,  wares  and  merchandise  are 
actually  brought  on  shore  or  carried  from  the  shore  contrary  to 
law,  a  person  may  be  guilty  of  divers  practices,  which  have  a 
direct  tendency  thereto,  without  being  guilty  of  any  offense.  In 
People  V.  Murray,^  the  defendant  was  indicted  for  an  attempt 

116,  12  Fed.  52  ;   People  t;.  Murray,  'Keck  v.  United  States,   172  U. 

14  Cal.   159 ;    Pinkard  v.  State,  30  S.  434,  43  L.  ed.  505,  19  S.  C.  254 ; 

Ga.  757 ;   Cox  v.  People,  82  111.  191 ;  United  States  v.  Britton,  108  U.  S. 

Thompson   v.    People,    96    111.    158;  199,  27  L.  ed.  698,  2  S.  C.  531. 
Stephens  v.   State,    107  Ind.    185,  8  ^Stephens  v.  State,  107  Ind.  185; 

N.  E.  94 ;    Stabler  v.  Comm.  95  Pa.  Pinkard  v.  State,  30  Ga.  757. 
318;   State  v.  Hurley,  79  Vt.  28,  64  ^  State  v.  Butler,  26  W.  Va.  90; 

Atl.  78 ;  State  v.  Butler,  35  W.  Va.  90.  Cox  v.  People,  82  111.  191 ;  Thompson 

2  Agnew  V.  United  States,  165  U.  S.  v.  People,  96  111.  158. 
36,  50,  41  L.  ed.  624,  17  S.  C.  235.  « 172  U.  S.  445. 

See  also  Rex  v.   Moore,  3  B.  &  Ad.  ^  14  Cal.    159   (Opinion  per  Mr. 

184 ;  Regina  v.  Jones,  9  C.  &  P.  258.  Justice  Field). 
380 


Chap.  XXXVI]  PARTICULAR   INSTANCES  [§  455 

to  contract  an  incestuous  marriage  with  his  niece.  Evidence 
showed  the  declarations  of  his  determination  to  contract  the 
marriage,  his  elopement  with  his  niece  for  that  avowed  purpose, 
and  his  request  to  one  of  the  witnesses  to  go  for  a  magistrate  to 
perform  the  ceremony.  The  court  held  this  did  not  constitute 
an  attempt,  saying :  "  The  preparation  consists  in  devising  or 
arranging  the  means  or  measures  necessary  for  the  commission  of 
the  offense ;  the  attempt  is  the  direct  movement  toward  the  com- 
mission after  the  preparations  are  made.  The  attempt  contem- 
plated by  the  statute  must  be  manifested  by  acts  which  would 
end  in  the  consummation  of  the  particular  offense,  but  for  the  inter- 
vention of  circumstances  independent  of  the  will  of  the  party." 
In  one  case,^  the  court,  in  sustaining  a  demurrer  to  an  information 
accusing  the  defendant  of  "  attempting  "  to  introduce  liquor  into 
the  Territory  of  Alaska,  said  that  the  intent  to  introduce  liquor 
must  be  coupled  with  an  act  done  in  pursuance  to  such  an  intention. 

§  454.  Where  Several  Defendants  Are  on  Trial. 

The  statute  provides :  "  On  an  indictment  against  several,  if 
the  jury  cannot  agree  upon  a  verdict  as  to  all,  they  may  render  a 
verdict  as  to  those  in  regard  to  whom  they  do  agree,  on  which 
a  judgment  shall  be  entered  accordingly;  and  the  cause,  as  to 
the  other  defendants,  may  be  tried  by  another  jury."  ^  In  a 
trial  of  a  consolidated  indictment  against  several  defendants, 
it  is  improper  for  the  court  to  instruct  the  jury  that  they  must 
agree  on  a  verdict  as  to  all  of  the  defendants.^  A  verdict  finding 
the  defendant  guilty  on  some  counts  and  not  mentioning  the  other 
counts  at  all  is  an  acquittal  on  the  other  counts.^  Likewise,  a  ver- 
dict finding  some  of  the  defendants  guilty  and  silent  as  to  the  other 
defendants  on  trial  is  equivalent  to  an  acquittal  of  the  latter.'* 

§  455.   Effect  of  Verdict  Silent  as  to  Some  Counts. 
Where  a  jury,  although  convicting  as  to  some,  are  silent  as 
to  other  counts  of  an  indictment,  and  are  discharged  without  the 

8  United    States    v.    Stephen,    12  ^  Jolly  v.   United  States,    170  U. 

Fed.  52.  S.  402,  42  L.  ed.  1085,  18  S.  C.  624 ; 

§  454.   1  Revised  Statute  §  1036.  People  v.  Weil,  243  111.  208,  90  N.  E. 

2Bucklin   v.    United   States,    159  731. 

U.  S.  682,  40  L.  ed.  305,  16  S.  C.  "  State  v.  Stone  (S.  C),  69  S.  E. 

182.  659. 

381 


§  455]  VERDICT  [Chap.  XXXVI 

consent  of  the  accused ;  the  effect  of  such  discharge  is  "  equivalent 
to  acquittal  "  because  as  the  record  affords  no  adequate  legal 
cause  for  the  discharge  of  the  jury,  any  further  attempt  to  prose- 
cute would  amount  to  a  second  jeopardy,  as  to  the  charge  with 
reference  to  which  the  jury  has  been  silent.  But  such  obviously 
is  not  the  case,  when  a  jury  have  not  been  silent  as  to  a  particular 
count,  but  where,  on  the  contrary,  disagreement  is  formally 
entered  on  the  record.  The  effect  of  such  entry  justifies  the  dis- 
charge of  the  jury,  and  therefore  a  subsequent  prosecution  for 
the  offense  as  to  which  the  jury  has  disagreed  and  on  account  of 
which  it  has  been  regularly  discharged,  would  not  constitute  second 
jeopardy.^  The  jury  may  convict  on  some  of  the  counts  and  acquit 
on  others.^ 

§  456.  Presence  of  the  Accused  Required  at  Rendition  of 
Verdict  —  Exception. 

"  It  is  the  right  of  the  defendant  in  cases  of  felony  to  be  present 
at  all  stages  of  the  trial,  —  especially  at  the  rendition  of  the  ver- 
dict and,  if  he  be  in  such  custody  and  confinement  as  not  to  be 
present  unless  sent  for  and  relieved  by  the  court,  the  reception  of 
the  verdict  during  such  compulsory  absence  is  so  illegal  as  to 
necessitate  the  setting  it  aside.  The  principle  thus  ruled  is  good 
sense  and  sound  law ;  because  he  cannot  exercise  the  right  to  be 
present  at  the  rendition  of  the  verdict  when  in  jail,  unless  the 
officer  of  the  court  brings  him  into  court  by  its  order.  But  the 
case  is  quite  different  when,  after  being  present  through  the  prog- 
ress of  the  trial  and  up  to  the  dismissal  of  the  jury  to  their  room, 
he  voluntarily  absents  himself  from  the  court  room,  where  he  and 
his  bail  obligated  themselves  that  he  should  be."  ^ 

§  455.   ^  Silvester  v.  United  States,  §  456.   ^  Mr.  Justice  Van  Devanter 

170  U.  S.  262,  42  L.  ed.  1029,  18  S.  C.      in  Diaz  v.  United  States,  223  U.  S. 
580.  442,  56  L.  ed.  500,  32  S.  C.  250. 

2  Wilson    V.    United    States,    176 
Fed.  806. 


382 


CHAPTER  XXXVII 

MOTIONS  FOR  NEW  TRIAL 

§457.  The  New  Statute. 

§  458.  When  the  Motion  Must  Be  Made. 

§  459.  The  Granting  or  Refusal  of  a  New  Trial. 

§  460.  Motion  for  New  Trial  for  Newly  Discovered  Evidence  after  Allowance 

of  Writ  of  Error. 

§  461.  Incompetent  Testimony. 

§  462.  Jurors  Cannot  Impeach  Their  Own  Verdicts. 

§  463.  Misconduct  Affecting  Jurors. 

§  457.  The  New  Statute. 

"  All  of  said  courts  shall  have  power  to  grant  new  trials,  in  cases 
where  there  has  been  a  trial  by  jury,  for  reasons  for  which  new 
trials  have  usually  been  granted  in  the  courts  of  law.  On  the 
hearing  of  any  appeal,  certiorari,  writ  of  error,  or  motion  for  a 
new  trial,  in  any  case,  civil  or  criminal,  the  court  shall  give  judg- 
ment after  an  examination  of  the  entire  record  before  the  court, 
without  regard  to  technical  errors,  defects  or  exceptions  which 
do  not  affect  the  substantial  rights  of  the  parties."  ^ 

§  458.  When  the  Motion  Must  Be  Made. 

Generally  a  motion  for  a  new  trial  must  be  made  during  the 
term  and  before  judgment.^  But  when  it  appears  that  certain 
material  evidence  was  received  at  the  trial  which  was  untruthful, 
the  trial  court  will  grant  a  new  trial,  though  the  defendant  is 
guilty  of  laches  in  making  application  for  same.^  In  the  Fifth 
Circuit,  it  was  held  that  the  defendant  need  not  be  present  during 
the  argument  and  disposition  of  the  motion  for  a  new  trial.^ 
The  propriety  of  this  ruling  may  well  be  questioned  in  view  of 
the  well    settled   law  requiring   the   presence  of  the  defendant 

§  457.  1  §  269  of  Federal  Judicial  Fed.  378.  Compare  United  States  v. 
Code  as  amended  February  26,  1919.      Mayer,  235  U.  S.  55,  59  L.  ed.  129, 

§  458.   1  Trafton  v.  United  States,      35  S.  C.  16. 
147  Fed.  513,  78  C.  C.  A.  79  (1st  Cir.).  ^  Alexis  v.  United  States,  129  Fed. 

2  United  States  v.   Radford,    131      60,  63  C.  C.  A.  498  (5th  Cir.). 

383 


§  458]  MOTION  FOR  NEW  TRIAL  [Chap.  XXXVII 

at  every  stage  of  the  case.  A  motion  for  a  new  trial  disposes  of  the 
substantial  rights  of  the  accused/  and  the  defendant  possesses  a 
right  which  he  cannot  waive  to  be  present  in  court. ^  The  trial 
court,  however,  cannot  grant  a  new  trial  after  the  close  of  the 
term  even  though  there  is  newly  discovered  evidence  unless  a 
motion  to  that  effect  had  been  made  during  the  term  and  the 
trial  court  reserved  decision.  Otherwise  the  Circuit  Court  of 
Appeals  will  nullify  such  a  grant  by  a  writ  of  prohibition.^ 

§  459.   The  Granting  or  Refusal  of  a  New  Trial. 

The  granting  or  refusal  of  a  new  trial  rests  in  the  sound  dis- 
cretion of  the  trial  court  and  generally  is  not  reviewable  on  a  writ 
of  error.^  In  this  instance  as  in  every  other  when  discretionary 
power  is  reposed  in  a  court,  it  does  not  carry  with  it  the  right  of 
abuse.^  When  the  trial  court  rejects  affidavits  in  support  of  a  mo- 
tion for  a  new  trial,  the  court  virtually  asserts  a  refusal  to  perform 
its  duties  and  that  of  course  will  be  reviewed  on  writ  of  error.^ 

§  460.  Motion  for  New  Trial  for  Newly  Discovered  Evidence 
after  Allowance  of  Writ  of  Error. 

The  procedure,  relating  to  the  subject  of  motion  for  new  trial 

after  the  suing  out  of  a  writ  of  error,  has  been  considered  for  the 

first  time  by  the  United  States  Circuit  Court  of  Appeals  for  the 

^Mattox    V.    United    States,    146  ^  Taylor    v.    United    States,    244 

U.  S.  140,  36  L.  ed.  917,  13  S.  C.  50.  Fed.  321,  156  C.  C.  A.  607  (4th  Cir.) ; 

5  Hopt  V.  Utah,  110  U.  S.  574,  28  Chambers  v.  United  States,  237 
L.  ed.  262,  4  S.  C.  202.  Fed.  513,  150  C.  C.  A.  395  (8th  Cir.) ; 

6  United  States  v.  Mayer,  235  Holt  v.  United  States,  218  U.  S.  245, 
U.  S.  55,  59  L.  ed.  129,  35  S.  C.  16.  54  L.  ed.  1021,  31  S.  C.  2 ;  Holmgren 

§  459.    1  Holmgren       v.       United  v.  United  States,  217  U.  S.  509,  54 

States,  217  U.  S.  509,  521,  54  L.  ed.  L.  ed.  861,  30  S.  C.  588. 

861,  30  S.  C.  588;    Towe  v.  United  =>  Mattox    v.    United    States,    146 

States,  238  Fed.  557,  151  C.  C.  A.  U.  S.  140,  36  L.  ed.  917,  13  S.  C.  50; 

493    (4th   Cir.) ;    Lueders  v.   United  Chambers  v.  United  States,  237  Fed. 

States,  210  Fed.  419,  127  C.  C.  A.  151  513,   150  C.  C.  A.  395   (8th  Cir.) ; 

(9th  Cir.) ;  Bernal  v.  United  States,  Smith   v.    United   States,    231    Fed. 

241  Fed.  339,  154  C.  C.  A.  219  (5th  25,    145   C.   C.   A.   213    (9th   Cir.) ; 

Cir.) ;  Writ  of  Certiorari  denied,  2451].  Dwyer   v.   United   States,    170   Fed. 

S.  672 ;    Kulp  v.  United  States,  210  100,    95   C.    C.    A.   416    (9th   Cir.) ; 

Fed.  249,  127  C.  C.  A.  67  (3d  Cir.);  Ogden   v.   United   States,    112   Fed. 

Kettenbach  v.  United  States,  202  Fed.  523,  50  C.  C.  A.  380  (3d  Cir.) ;  Haws 

377,   120  C.   C.   A.   505   (9th  Cir.) ;  v.    Victoria    Cooper    Min.    Co.,  160 

Blitz  V.  United  States,  153  U.  S.  308,  U.   S.  303,  40  L.  ed.  436,  16  S.  C. 

38  L.  ed.  725,  14  S.  C.  924.  282. 
384 


Chap.  XXXVII]         NEWLY   DISCOVERED   EVIDENCE  [§  462 

First  Circuit.^  The  proper  practice  is  to  file  a  motion  in  the 
reviewing  court,  supported  by  affidavits,  for  leave  to  file  a  motion 
or  petition  in  the  court  below  suggesting  the  additional  testimony. 
Upon  filing  of  such  petition  the  court  will  pass  primarily  upon 
the  questions  whether  the  new  matter  is  material ;  and  whether  it 
was  available  before  the  trial  and  whether  the  applicant  was 
guilty  of  laches.  Such  an  application  may  be  entertained  by  the 
Appellate  Tribunal  even  after  judgment  or  mandate.^ 

§  461.   Incompetent  Testimony. 

The  admission  of  evidence  which  is  neither  relevant  nor  material 
to  the  questions  upon  trial  and  to  which  objection  is  made  by  the 
defendant  constitutes  a  fatal  error,  being  in  violation  of  the  defend- 
ant's right  to  have  the  jury  decide  only  questions  in  issue.^  The 
assumption  is  that  such  evidence  is  prejudicial,^  unless  it  clearly 
appears  to  the  contrary.^  But  the  admission  of  incompetent 
testimony  to  which  no  objection  was  made  cannot  be  raised  for 
the  first  time  on  a  motion  for  a  new  trial.  As,  for  instance,  objec- 
tion to  a  husband's  testifying  against  his  wife,*  or  misconduct  on 
the  part  of  the  district  attorney.^ 

§  462.   Jurors  Cannot  Impeach  Their  Own  Verdicts. 

Public  policy  forbids  that  a  matter  resting  in  the  personal  con- 
sciousness of  one  juror  should  be  received  to  overthrow  the  verdict, 
because  being  personal  it  is  not  accessible  to  other  testimony ;  it 
gives  to  the  secret  thought  of  one  the  power  to  disturb  the  ex- 
pressed conclusions  of  twelve;  its  tendency  is  to  produce  bad 
faith  on  the  part  of  a  minority,  to  induce  an  apparent  acquiescence 
with  the  purpose  of  subsequent  dissent ;  to  induce  tampering  with 

§460.   iln     re     Gamewell     Fire-  « King  r.  United  States,  112  Fed. 

Alarm  Tel.  Co.,  73  Fed.  908,  20  C.  C.  988,  50  C.  C.  A.  647  (5th  Cir.). 
A.  Ill  (1st  Cir.).  3Dimmick  v.  United  States,   116 

2  Boston  &  R.  Elec.  St.  Ry.  Co.  Fed.  825,  54  C.  C.  A.  329  (9th  Cir.). 
V.  Bemis  Car  Box  Co.,  98  Fed.  121,  *  United    States    v.    Kjioell,    230 

38  C.  C.  A.  661  (1st  Cir.) ;    Bliss  v.  Fed.    509.     Affirmed,    239    Fed.    16, 

Reed,  106  Fed.  314,  45  C.  C.  A.  304  152  C.  C.  A.  66  (3d  Cir.). 
(3d  Cir.) ;   Westinghouse  El.  &  Mfg.  »  Smith  v.  United  States,  231  Fed. 

Co.  V.   Stanley  Instrument  Co.,  138  25,  145  C.  C.  A.  213  (9th  Cir.),  but 

Fed.  823,  71  C.  C.  A.  189  (1st  Cir.).  see  August  v.  United  States,  257  Fed. 

§  461.   1  Sparks    v.    Territory    of  388  (C.  C.  A.  8  Cer.) ,  construing  new 

Oklahoma,  146  Fed.  371,  76  C.  C.  A.  statute. 
594  (8th  Cir.). 

VOL.  1  —  25  385 


§  462]  MOTION    FOR   NEW   TRIAL  [Chap.  XXXVII 

individual  jurors  subsequent  to  the  verdict.  But  as  to  overt  acts, 
they  are  accessible  to  the  knowledge  of  all  the  jurors ;  if  one 
affirms  misconduct,  the  remaining  eleven  can  deny;  one  cannot 
disturb  the  action  of  the  twelve ;  it  is  useless  to  tamper  with  one, 
for  the  eleven  may  be  heard.  Private  communications,  possibly 
prejudicial,  between  jurors  and  third  persons,  or  witnesses,  or  the 
officer  in  charge,  are  absolutely  forbidden,  and  invalidate  the  ver- 
dict at  least  unless  their  harmlessness  is  made  to  appear.^  In  Hyde 
V.  United  States,^  it  was  held  that  an  affidavit  by  a  juror  in  support 
of  a  motion  for  new  trial  to  the  effect  that  the  verdict  was  the  result 
of  an  agreement  between  certain  of  the  jurors  who  believed  that 
all  the  defendants  should  be  acquitted,  by  which  agreement  the 
acquittal  of  one  of  the  defendants  was  exchanged  for  the  conviction 
of  the  defendant  Hyde,  was  insufficient  to  justify  a  new  trial. 

§  463.   Misconduct  Affecting  Jurors. 

The  reviewing  tribunal  will  order  a  new  trial,  whenever  the  de- 
fendant is  not  tried  by  an  impartial  jury,^  or  when  the  indict- 
ment is  handed  to  the  jury  by  an  officer  of  the  court  on  the  back 
of  which  is  indorsed  the  verdict  of  a  former  jury  finding  the 
defendant  guilty.^  But  the  Circuit  Court  of  Appeals  of  the  Eighth 
Circuit  held  that  the  fact  that  a  deputy  marshal  made  state- 
ments to  the  jury  while  in  their  room  as  to  the  penalty  which  the 
court  will  probably  inflict  if  the  defendants  are  found  guilty,  is 
not  conclusive  proof  that  the  defendants'  rights  were  prejudiced. 
The  court,  relying  on  Mattox  ti.  United  States,^  decided  that  the 
granting  of  a  new  trial  is  absolutely  within  the  discretion  of  the 
trial  court  and  not  subject  to  review,  notwithstanding  the  fact 
that  the  deputy  marshal  advised  the  jury  that  the  court  would 
only  impose  a  fine  on  the  defendants.^ 

§462.   1  Mattox  t>.  United  States,  ^  Ogden    v.    United    States,     112 

146  U.  S.  140,  3G  L.  ed.  917;   Walsh  Fed.  523,  50  C.  C.  A.  380  (3d  Cir.). 
V.  United  States,    174  Fed.  615,  98  ^  146  U.  S.   140,   147,   150,  36  L. 

C.  C.  A.  461  (7th  Cir.).  ed.  917,  13  S.  C.  50. 

2  225  U.  S.  347,  56  L.  ed.  1114,  "Chambers  v.  United  States,  237 

32  S.  C.  793.  Fed.  513,  150  C.  C.  A.  395  (8th  Cir.). 

§  463.    '  Simpson  v.  United  States,  As  to  the  reviewability  of  orders  de- 

184  Fed.  817,  107  C.  C.  A.  89  (8th  nying  motions  for  new  trial,  see  note 

Cir.) ;  Harrison  v.  United  States,  200  2  of  §  459  supra. 
Fed.  662,  119  C.  C.  A.  78  (6th  Cir.). 

386 


CHAPTER  XXXVIII 
MOTION  IN  ARREST  OF  JUDGMENT 

§  464.   Scope  of  the  Motion. 

§  465.    Grounds  for  the  Motion. 

§  466.   Motions  in  Arrest  of  Judgment  Are  Reviewable. 

§  464.  Scope  of  the  Motion. 

As  a  general  rule  whatever  is  fatal  on  demurrer  is  equally  so  on 
a  motion  in  arrest  of  judgment,  provided,  the  defect  is  one  of 
substance  and  not  of  mere  form.  A  motion  in  arrest  of  judg- 
ment must,  from  the  nature  of  things,  be  made  after  the  trial  has 
been  concluded.^  The  better  practice,  however,  is  to  attack  an 
insufficiency  in  the  indictment  by  demurrer.^  This  motion  may  be 
used  for  the  purpose  of  taking  advantage  of  any  essential  defect 
in  the  indictment  based  upon  knowledge  obtained  during  or  after 
the  conclusion  of  the  trial,^  because  the  indictment  fails  to  allege 
any  substantive  offense  against  the  United  States,^  or  because  the 
verdict  is  defective,^  because  the  indictment  charged  in  each  count 
at  least  two  separate  and  distinct  offenses.  The  question  of 
duplicity  cannot  be  raised  after  verdict  unless  the  defendant  can 
show  that  his  rights  were  prejudiced  by  this  error.  Generally  it 
will  be  held  that  the  indictment  is  not  materially  defective  and 

§  464.   1  Hillegass        v.        United  767.    Affirmed,  167  Fed.  951,  93  C. 

States,  183  Fed.  199,  105  C.  C.  A.  C.  A.  351  (3d  Cir.). 
631     (3d    Cir.) ;     United    States    v.  *  Morris    v.    United    States,     168 

Kilpatrick,  16  Fed.  765,  774.  Fed.  682,  94  C.  C.  A.  168  (8th  Cir.) ; 

2  Clement  v.   United   States,    149  Bhtz    v.    United    States,    153   U.    S. 

Fed.  305,  313,  79  C.  C.  A.  243  (8th  308,  38  L.  ed.  725,   14  S.  C.  924; 

Cir.) ;    Morris  v.  United  States,  168  Clement  v.  United  States,   149  Fed. 

Fed.  682,  94  C.  C.  A.  168  (8th  Cir.).  305,  79  C.  C.  A.  243  (8th  Cu-.). 

^  Cooper    V.    United    States,    247  *  Patterson    v.    United   States,    2 

Fed.  45,  —  C.  C.  A.  —(4th  Cir.);  Wheat.   (U.  S.)  221,  4  L.  ed.  224; 

United  States  i;.   Martin,    159  Fed.  1  Archibald's  Crim.  PI.  341,  671,  672. 

387 


§  464]  MOTION    IN   ARREST    OF   JUDGMENT      [Chap.  XXXVIII 

therefore  Revised  Statute  §  1025  applies.^  A  bill  of  particulars 
does  not  cure  bad  pleading.  It  is  therefore  immaterial  whether 
or  not  the  defendant  had  requested  a  bill  of  particulars  when  a 
motion  is  made  in  his  behalf  in  arrest  of  judgment.^  In  United 
States  V.  Bartow,^  the  court  held  that  when  an  indictment  is 
loosely  drawn  so  as  to  afford  doubt  as  to  whether  it  is  sufficient  to 
support  a  conviction,  the  indictment  should  not  be  quashed  but 
be  left  to  be  solved  upon  a  motion  in  arrest  of  judgment.  But 
such  a  process  puts  a  person  in  jeopardy,  causing  him  irreparable 
injury  to  his  character  when  as  a  matter  of  fact  he  may  be  inno- 
cent. Judge  Sanborn,  in  United  States  v.  Corbett,^  disapproves 
of  the  method  mentioned  in  United  States  v.  Bartow,  supra. 
He  held  that  since  by  a  recent  statute  Avhen  a  motion  to  quash 
is  sustained,  it  may  be  reviewed  by  writ  of  error  on  the  part  of 
the  United  States,  there  is  no  reason  why  a  person  should  be 
put  in  jeopardy  and  then  after  a  possible  conviction  seek  to  be 
exonerated  by  a  motion  in  arrest  of  judgment. 

§  465.   Grounds  for  the  Motion. 

The  law  is  well  settled  that  a  judgment  in  a  criminal  case  will, 
after  conviction,  be  arrested  only  for  matter  appearing  of  record 
which  would  render  the  judgment  erroneous  if  given ;  or  for  matter 
which  should  appear  and  does  not  appear  on  the  record ;  the  evi- 
dence being  no  part  of  the  record  for  such  purpose.  The  rule  in 
civil  cases,  that  the  matter  alleged  on  arrest  must  be  such  as  would 
have  been  sufficient  on  demurrer  to  overturn  the  action  or  plea, 
also  applies  to  criminal  cases. ^  Under  Revised  Statute  §  1025  a 
formal  defect  in  the  indictment  not  tending  to  prejudice  the  rights 
of  a  defendant  affords  no  ground  for  a  motion  in  arrest  of  judg- 

«  United  States  v.  Bayaud,  IG  200  Fed.  997 ;  United  States  v.  Mar- 
Fed.  37G,  78  C.  C.  A.  323  •  Morgan  rin  (D.  C),  159  Fed.  767.  Affirmed, 
V.  United  States,  148  Fed.  189  (8th  1G7  Fed.  951,  93  C.  C.  A.  351  (3d 
Cir.) ;  Connors  v.  United  States,  Cir.) ;  United  States  v.  Kilpatrick, 
158  U.  S.  408,  39  L.  ed.  1033,  15  S.  16  Fed.  765,  773 ;  United  States  v. 
C.  951.  Barnhardt,    17    Fed.    579;     Towe   v. 

7  United  States  v.  Tubbs,  94  Fed.  United  States,  238  Fed.  557,  —  C.  C. 

35Q.  A.  —  (4th  Cir.) ;    United  States  v. 

8 10  Fed.  874.  Erie  R.  Co.,  222  Fed.  444;   Demolli 

»  162  Fed.  687.  v.  United  States,  144  Fed.  363,  75  C. 

§  465.   1  United  States  v.  Maxey,  C.  A.  365  (8th  Cir.). 
388 


Chap.  XXXVIII] 


REVIEW 


[§466 


ment.  The  objection  should  be  pointed  out  on  demurrer  to  the 
indictment  or  otherwise  taken  advantage  of  at  the  trial,  and  if 
this  course  is  not  pursued,^  judgment  will  not  be  arrested. 

§  466.   Motions  in  Arrest  of  Judgment  Are  Reviewable. 

Rulings  in  arrest  of  judgment  are  always  reviewable  by  appellate 
tribunals.^  The  Circuit  Court  of  Appeals  of  the  Ninth  Circuit, 
relying  on  Canal  and  Claiborne  Street  R.  R.  Co.  v.  Ilart,^  held 
that  a  motion  in  arrest  of  judgment  is  not  reviewable  on  a  writ 
of  error.^  But  the  decision  in  the  Canal  and  Claiborne  Street 
R.  R.  Co.  V.  Hart,  supra,  does  not  support  that  statement.  The  de- 
fendant in  that  case  tried  to  arrest  the  judgment  because  of  certain 
evidence  given  at  the  trial.  The  court  held  that  since  a  judgment 
will  only  be  arrested  for  matter  appearing  in  the  record  and  the 
evidence  for  that  purpose  being  no  part  of  the  record,  the  defendant 
was  virtually  making  the  necessary  allegations  for  a  motion  for 
a  new  trial  and  misnamed  it  a  motion  in  arrest  of  judgment. 
Then  the  court  added  that  since  it  really  amounted  to  a  motion  for 
a  new  trial  it  was  within  the  discretion  of  the  trial  court  to  grant 
or  refuse  same  and  was  not  reviewable  on  a  writ  of  error. 


2  Holmgren  v.  United  States,  217 
U.  S.  509,  54  L.  ed.  861,  30  S.  C.  588 ; 
Armour  Packing  Co.  v.  United  States, 
209  U.  S.  56,  52  L.  ed.  681,  28  S.  C. 
428;  Morris  v.  United  States,  161 
Fed.  672,  88  C.  C.  A.  532  (8th  Cir.) ; 
Clement  v.  United  States,  149  Fed. 
305,  79  C.  C.  A.  243  (8th  Cir.); 
Rosen  v.  United  States,  161  U.  S. 
29,  40  L.  ed.  606,  16  S.  C.  434; 
United  States  v.  Chase,  27  Fed.  807. 


§466.  1  Blitz  V.  United  States, 
supra;  Snitkin  v.  United  States  (C. 
C.  A.  7th  Cir.  March  30,  1920). 

2  114  U.  S.  654,  661,  29  L.  ed. 
226,  5  S.  C.  1127. 

'  Andrews  v.  United  States,  224 
Fed.  418,  139  C.  C.  A.  646  (9th  Cir.) ; 
Beyer  v.  United  States,  251  Fed. 
39,  —  C.  C.  A.  —  (9th  Cir.). 


389 


CHAPTER  XXXIX 

SENTENCE  AND  JUDGMENT 

§  467.  Constitutional  Provisions. 

§  468.  Measure  and  Mode  of  Punishment. 

§  469.  Punishment  as  Affected  by  Different  Statutes  on  Same  Subject.    \ 

§  470.  Concurrent  and  Cumulative  Sentences. 

§  471.  Judgment  on  Pleas  of  Guilt. 

§472.  Costs. 

§  473.  Suspending  Sentence. 

§  474.  Sentence  and  Correction  —  Term. 

§  475.  When  Judgment  Can  Be  Vacated. 

§  476.  Judgments  for  Fines. 

§  477.  Judgment  Imposing  Fine  Only. 

§  478.  Exemption  Laws. 

§  479.  Remedy  for  Persons  Unable  to  Pay  Fine. 

§  480.  Designation  of  Place  of  Imprisonment. 

§  467.   Constitutional  Provisions. 

The  Eighth  Amendment  to  the  Constitution  of  the  United 
States  provides  that  cruel  and  unusual  punishment  shall  not  be 
inflicted.  This  provision  is  a  limitation  upon  the  Federal  Govern- 
ment and  does  not  apply  to  the  States.^  The  historical  data 
relating  to  the  adoption  of  the  Eighth  Amendment  was  ably 
reviewed  in  Weems  v.  United  States,^  in  an  elaborate  opinion  by 
Mr.  Justice  McKenna,  and  in  the  dissenting  opinion  of  Mr. 
Justice    White,    the    present    Chief    Justice.     Even    before    the 

§  467.    1  Ex     parte     Watkins,     7  more,  7  Peter  (U.  S.),  243,  8  L.  ed. 

Peter    (U.   S.),   573,   8   L.   ed.    786;  672;     Pervear    v.    Massachusetts,    5 

Ensign  v.   Pennsylvania,   227   U.   S.  Wall.    (U.   S.)   475,    18   L.   ed.   608; 

592,  57  L.  ed.  658,  33  S.   C.  321 ;  McElvaine  v.  Bruch,  142  U.  S.  155, 

Collins  V.  Johnston,  237  U.  S.  502,  35  L.  ed.  971,  12  S.  C.  156. 
69  L.  ed.  1071,  35  S.  C.  649;  O'Neill  ''217  U.  S.  349,  54  L.  ed.  793, 

V.  Vermont,  144  U.  S.  323,  36  L.  ed.  30  S.  C.  544. 
450.  12  S.  C.  693;    Barron  v.  Balti- 
390 


Chap.  XXXIX]         constitutional  PROVISIONS  [§  467 

adoption  of  the  Constitution  much  had  been  done  toward  miti- 
gating the  severity  of  the  common  law,  particularly  the  adminis- 
tration of  the  criminal  branch.  The  number  of  capital  crimes  in 
this  country,  at  least,  had  been  largely  decreased  and  trial  by  ordeal 
and  by  battle  had  never  existed  here.^  Ordinarily,  the  term  "  cruel 
and  unusual  punishment  "  implies  something  inhuman,  barbarous, 
torture  and  alive.'*  The  Supreme  Court  of  the  United  States  ^ 
declined  to  define  with  exactness  the  extent  of  the  constitutional 
provision  which  provides  that  cruel  and  unusual  punishments 
should  not  be  inflicted,  but  it  stated  that  it  was  safe  to  affirm 
that  punishments  of  torture,  such  as  where  the  prisoner  was  drawn 
or  dragged  to  the  place  of  execution,  in  treason ;  or  where  he  was 
disembowelled  alive,  beheaded  and  quartered  in  high  treason,  or 
burning  alive  in  treason,  and  all  others  in  the  same  line  of  un- 
necessary cruel  acts  were  forbidden  by  the  Constitution  of  the 
United  States.  But  in  the  Weems  case,^  the  Supreme  Court  of 
the  United  States  by  a  divided  court  held  that  what  constitutes 
cruel  and  unusual  punishment  has  not  been  exactly  defined,  that 
the  Eighth  Amendment  to  the  Constitution  of  the  United  States 
is  progressive  and  does  not  prohibit  merely  the  cruel  and  unusual 
punishments  known  in  1787  and  1869  but  may  acquire  wider  mean- 
ing as  public  opinion  becomes  enlightened  by  human  justice. 
For  these  reasons  the  court  held  that  punishment  by  imprison- 
ment, carrying  during  his  imprisonment  a  chain  on  the  ankle 
hanging  from  the  wrist,  comes  within  the  condemnation  of  the 
Constitutional  prohibition  against  cruel  and  unusual  punishments.^ 
In  another  case  ^  ten  years'  imprisonment  for  assault  with  a 
dangerous  weapon  was  held  not  to  be  out  of  all  proportion  to  the 
offense.  The  extent  of  the  punishment,  upon  conviction,  ought 
to  be  such  as  is  warranted  by  law,  and  such  as  appears  to  be  best 
calculated  to  answer  the  ends  of  precaution  necessar}''  to  deter 
others  from  the  commission  of  the  offense,  in  addition  to  the 

3  Holden  v.  Hardy,  169  U.  S.  366,  "  217  U.  S.  349,  54  L.  ed.  793,  30 

42  L.  ed.  780,  18  S.  C.  383.  S.  C.  544. 

'  Weems    v.    United    States,    217  '  Weems  v.  United  States,  217  U. 

U.  S.  349,  54  L.  ed.  793,  30  S.  C.  S.  349,  54  L.  ed.  793,  30  S.  C.  544. 
544.  8  Jackson   v.    United    States,    102 

"*  Wilkerson  v.  Utah,  99  U.  S.  130,  Fed.  471,  488,  42  C.  C.  A.  452  (9th 

25  L.  ed.  346.  "  Cir.). 

391 


§  467]  SENTENCE   AND   JUDGMENT  [Chap.  XXXIX 

punishment  of  the  individual  offender.^  In  imposing  sentence 
for  two  distinct  offenses  carved  out  of  one  transaction,  the  court 
should  take  into  consideration  the  fact  that,  while  technically 
two  or  more  offenses  have  been  committed,  actually  there  has 
been  but  one  occurrence.  Every  good  judge  should  carefully 
weigh  all  the  circumstances,  regardless  of  his  power  to  impose 
sentence  separately  for  each  offense.^°  There  is  a  contrariety  of 
opinion  upon  the  question  whether,  when  a  defendant  has  been 
convicted  or  acquitted  upon  an  indictment  for  one  of  the  separate 
offenses  included  in  an  indictment,  that  is  a  bar  to  a  prosecution  for 
another  of  the  offenses  involved  in  the  same  act.^^  The  Supreme 
Court  of  the  United  States  is  inclined  to  hold  that  in  such  a  case 
the  bar  is  complete.  Thus,  in  Ex  parte  Nielsen,^^  the  court 
said :  "  But  be  that  as  it  may,  it  seems  to  us  very  clear  that, 
where,  as  in  this  case,  a  person  has  been  tried  and  convicted 
for  a  crime,  which  has  various  incidents  included  in  it,  he  cannot 
be  a  second  time  tried  for  one  of  those  incidents  without  being 
twice  put  in  jeopardy  for  the  same  offense."  The  sentence 
and  punishment  imposed  upon  a  defendant  for  any  violation 
of  the  statute  which  is  within  the  punishment  provided  for  by 
the  statute  cannot  be  regarded  as  excessive,  cruel  or  unusual.^' 
In  re  Kemmler,^*  the  court  held  that  punishments  were  cruel 
when  they  involved  torture  or  a  lingering  death ;  but  the  punish- 
ment of  death  was  not  cruel  within  the  meaning  of  the  Consti- 
tution ;  that  it  implied  something  inhuman  and  barbarous  and 
something  more  than  the  mere  extinguishment  of  life.  The 
punishment  on  each  of  five  counts,  of  five  years,  the  periods 
being  concurrent  and  not  cumulative,  and  a  fine  of  $1,000  on 
each  of  seven  counts  was  held  not  to  be  cruel  and  unusual 
within  the  prohibition.^^ 

« Jackson   v.   United   States,    102  2  Mass.  409;    State  v.  Thurston,  2 

Fed.  471,  488,  42  C.  C.  A.  452  (9th  McMul.  393. 

Cir.).  >^  131  U.  S.  119. 

"  United   States  v.   Harmison,    3  "  Jackson  v.   United  States,    102 

Sawyer  (U.  S.),  556.  Fed.  473,  487,  42  C.  C.  A.  452  (9th 

"  United    States    v.    Beerman,    5  Cir.). 

Cranch  (C.  C),  412,  Fed.  Cas.  No.  "  136  U.  S.  436,  34  L.  ed.  519, 

14560.    Overruled  by  Iloiles  v.  United  10  S.  C.  930. 

States,  3  MacArthur,   370;    Larton  "  Badders  v.  United  States,  240 

V.  State,  7  Mo.  55 ;  Comm.  v.  Andrews,  U.  S.  391,  60  L.  ed.  706,  36  S.  C.  367. 
392 


Chap.  XXXIX]       MEASURE    AND    MODE    OF    PUNISHMENT  [§  468 

§  468.   Measure  and  Mode  of  Punishment. 

Ordinarily  the  question  and  the  extent  of  punishment  and 
place  of  confinement  or  mode  of  punishment  is  one  which  rests 
in  the  sound  discretion  of  the  trial  court,  provided  it  is  within  the 
limit  prescribed  by  statute.^  The  jury  cannot  dictate  the  judg- 
ment to  the  court.  There  is  but  one  exception  to  this  rule. 
Under  §  330  of  the  Penal  Code  the  jury  is  empowered  in  capital 
cases  to  qualify  its  verdict  of  guilty  by  adding  "  without  capital 
punishment."  There  need  be  no  mitigating  circumstances  for  the 
jury  in  such  cases  to  render  a  qualified  verdict,  nor  is  the  jury 
answerable  to  the  court  for  its  decision.^  The  defendant  never- 
theless is  guilty  of  a  capital  offense  but  the  judge  is  obliged  to 
impose  a  sentence  of  life  imprisonment.^  Though  the  indictment 
may  contain  several  counts,  only  one  judgment  may  be  entered."* 
Punishment  may  be  imposed  on  each  count  of  the  indictment.^ 
But  this  rule  is  subject  to  qualifications  that  two  or  more  separate 
offenses  which  are  committed  at  the  same  time  and  are  part  of  a 
single  continuing  criminal  act,  inspired  by  the  same  criminal 
intent  which  is  essential  to  each  offense,  are  susceptible  to  but  one 
punishment.®  Thus  in  a  case  "^  under  a  Federal  statute  providing 
that  any  person  who  fraudulently  forges  a  postal  money  order, 
or  any  person  who  fraudulently  utters  a  forged  postal  money 
order,  shall  receive  a  certain  punishment,  defendant  had  been 
sentenced  to  imprisonment  on  a  count  charging  the  forging  of  an 

§  468.   1  Freeman  v.  United  States,  S.  344,  50  L.  ed.  1057,  26  S.  C.  688 ; 

243  Fed.  353,  156  C.  C.  A.  133  (9th  Carter    v.    McClaughry,   183    U.    S. 

Cir.).  365,  46  L.  ed.  236,  22  S.  C.   181; 

2  Manuel   v.    United   States,    254  Gavriers  v.   United   States,   220   U. 
Fed.  272,  —  C.  C.  A.  —  (8th  Cir.) ;  S.  338,  55  L.  ed.  489,  31  S.  C.  421. 
Winston   v.    United   States,    172   U.  "Stevens     v.     McClaughry,     207 
S.  303,  43  L.  ed.  456,  19  S.  C.  212.  Fed.  18,  125  C.  C.  A.  102  (8th  Cir.) ; 

3  Good  Shot  V.  United  States,  104  Munson  v.  McClaughry,  198  Fed. 
Fed,  257,  43  C.  C.  A.  525  (8th  Cir.);  72,  117  C.  C.  A.  180  (8th  Cir.); 
Fitzpatrick  v.  United  States,  178  Halligan  t;.  Wayne,  179  Fed.  112,  102 
U.  S.  304,  44  L.  ed.  1078,  20  S.  C.  C.  C.  A.  410  (9th  Cir.) ;  In  Re  Snow, 
944.  120  U.  S.  274,  30  L.  ed.  658,  7  S.  C. 

*  Freeman  v.  United  States,  227  556;  In  re  Nielsen,  131  U.  S.  176, 
Fed.  732,  142  C.  C.  A.  256  (2d  Cir.) ;      33  L.  ed.  118,  9  S.  C.  672. 

■United  States  v.  Carpenter,  151  Fed.  ^  United  States  v.  Carpenter,  151 

214,  81  C.  C.  A.  194  (9th  Cir.).  Fed.    214,    81   C.   C.    A.    194   (9th 

*  Burton  v.  United  States,  202  U.      Cir.). 

393 


§  468]  SENTENCE    AND   JUDGMENT  [Chap.  XXXIX 

order,  and  to  a  separate  imprisonment  on  a  count  charging  an 
uttering  of  the  same  order,  and  the  court  in  passing  said :  "  If 
this  section  were  before  us  for  construction,  unaffected  by  prece- 
dent, we  should  be  disposed  to  hold  that  it  was  intended  to 
provide  for  the  punishment  of  two  distinct  offenses,  one  of  forging 
or  altering  a  money  order,  and  one  of  uttering  the  same;  and 
that  the  first  two  counts  of  the  indictment  which  is  before  us 
charge  distinct  and  separate  crimes,  punishable  by  separate 
sentences.  But  it  has  been  generally  held  that  the  forging  and 
uttering  of  a  forged  instrument  are  parts  of  one  transaction,  the 
sentence  based  on  a  general  verdict  or  plea  of  guilty  must  im- 
pose only  one  penalty,  and  that  a  separate  sentence  for  each 
count  is  erroneous  and  void."  And  one  accused  of  burglary 
with  intent  to  commit  larceny  may  in  the  second  count  of  the 
same  indictment  be  charged  with  the  larceny,  and  on  such  an 
indictment  may  be  convicted  and  punished  for  either  offense, 
but  not  for  both ;  and  where  there  is  a  general  verdict  of  guilty 
he  may  be  sentenced  for  the  biu"glary  only.^  And  while  it  is 
regular  in  pleadings  to  join  a  count  for  forging  an  instrument 
with  a  count  for  passing  the  same  instrument,  in  the  same  in- 
dictment, it  is  not  permissible  to  have  a  separate  conviction  and 
judgment  under  each  count.  The  practice  in  such  cases  only 
permits  one  judgment.  The  Supreme  Court  of  Ilhnois  stated 
the  rule  as  follows :  "  As  to  the  joinder,  .  .  .  the  authorities 
are  abundant.  But  we  have  been  unable  to  find  any  case  which 
warrants  two  separate  convictions  and  judgments  where  the  one 
offense  is  introductory  to  and  forms  a  part  of  the  other.  The 
forgery  here,  if  committed  by  accused,  was  but  preparatory  to 
and  formed  a  part  of  the  crime  of  passing  the  forged  note,  and 
there  was  error  in  rendering  separate  judgments  on  the  several 
findings  of  the  jury.  Whether  the  people  might  have  had  a 
sentence  under  one  of  the  verdicts  and  had  the  other  set  aside, 
is  not  before  the  court,  and  that  question  is  not  decided."  ^ 

8Halligan  ex  parte  Wayne,    179  625,  59  L.  ed.  1151,  35  S.  C.  710, 

Fed.  112,  102  C.  C.  A.  410  (9th  Cir.).  holding  that   Congress  created  two 

But   see   Morgan   v.    Sylvester,    231  separate    offenses    in    Sections    190 

Fed.   886  ;     Morgan  v.   Devine,   237  and  192  of  the  Criminal  Code. 
U.  S.  632,  .59  L.  ed.  1150,  35  S.  C.  'Parker  v.  People,  97  111.  32. 

712;    Ebeling  v.  Morgan,  237  U.  S. 
394 


Chap.  XXXIX]     CONCURRENT  AND  CUMULATIVE  SENTENCES      [§  470 

§  469.  Punishment  as  Affected  by  Different  Statutes  on  Same 
Subject. 

Where  an  earher  act  prescribes  the  punishment  for  a  specific 
class  of  offenses,  or  otherwise  treats  of  a  specific  subject,  that 
act  is  not  affected  by  a  subsequent  general  law  which  prescribes 
the  punishment  for  many  classes  of  offenses,  including  that  class 
treated  by  the  earlier  special  law,  or  treats  of  many  subjects  in- 
cluding that  treated  by  the  earlier  special  law;  but,  unless  a 
contrary  intent  is  clearly  expressed  or  indubitably  inferable  from 
the  acts  they  must  stand  and  be  read  and  construed  together 
as  a  single  act,  the  act  regarding  the  specific  class  or  subject  as 
the  law  of  that  class  or  subject,  and  the  later  more  comprehensive 
act  as  the  general  law  of  the  classes  or  subjects  not  treated  by 
the  earlier  act.^ 

§  470.   Concurrent  and  Cumulative  Sentences. 
The  doctrine  that  sentences  cannot  be  cumulative  is  not  followed 
in  the  Federal  Courts.^     Under  convictions  upon  separate  counts 


§  469.  1  Cook  County  National 
Bank  v.  United  States,  107  U.  S.  445, 
450,  451,  27  L.  ed.  537,  2  S.  C.  561 ; 
Frost  V.  Wenie,  157  U.  S.  46,  48,  39 
L.  ed.  614,  15  S.  C.  532;  State  ;;. 
StoU,  17  Wall  (U.  S.),  425,  430,  431, 
436,  21  L.  ed.  650;  Board  of  Com- 
missioners V.  ^tna  Life  Insurance 
Company,  90  Fed.  222,  227,  32  C. 
C.  A.  585,  590  (8th  Cir.) ;  Christie- 
Street  Commission  Co.  v.  United 
States,  136  Fed.  326,  333,  69  C.  C. 
A.  464,  471  (8th  Cir.) ;  United  States 
V.  Ninety-Nine  Diamonds,  139  Fed. 
961,  965,  72  C.  C.  A.  9,  13  (8th  Cir.) ; 
2  L.  R.  A.  (n.  s.)  185 ;  City  Realty 
Co.  V.  S.  R.  H.  Robinson  Contract- 
ing Co.  (C.  C),  183  Fed.  176,  181; 
Hemmer  v.  United  States,  204  Fed. 
898,  906,  908,  123  C.  C.  A.  194,  202, 
204  (8th  Cir.) ;  Priddy  v.  Thompson, 
204  Fed.  955,  959,  123  C.  C.  A.  277, 
281  (8th  Cir.);  Sweet  v.  United 
States,  228  Fed.  421,  426,  143  C.  C. 
A.  3,  8  (8th  Cir.) ;   Sotiss  v.  General 


Electric  Co.,  213  Fed.  204,  208,  129 
C.  C.  A.  548,  552  (8th  Cir.) ;  King 
V.  Pomeroy,  121  Fed.  287,  294,  58 
C.  C.  A.  209,  216  (8th  Cir.) ;  United 
States  V.  Healey,  160  U.  S.  136,  147, 

40  L.  ed.  369,  16  S.  C.  247 ;  United 
States  V.  Greathouse,  166  U.  S.  601, 

41  L.  ed.  1130,  17  S.  C.  701;  Town- 
send  V.  Little,  109  U.  S.  504,  512,  27 
L.  ed.  1012,  3  S.  C.  357;  Petri  v. 
Creelman  Lumber  Co.,  199  U.  S. 
487,  496,  499,  50  L.  ed.  281,  26  S.  C. 
133;  Ex  parte  United  States,  226 
U.  S.  420,  424,  57  L.  ed.  281,  33  S.  C. 
170 ;  Stoneberg  v.  Morgan,  246  Fed. 
98,  158  C.  C.  A.  324  (8th  Cir.).  See 
also  Snitkin  v.  United  States  (C.  C. 
A.  7th  Cir.  March  30,  1920),  hold- 
ing that  prosecutor  cannot  elect  to 
prosecute  under  statute  carrying  the 
heaviest  penalty. 

§  470.  1  Freeman  v.  United  States, 
227  Fed.  732,  142  C.  C.  A.  256  (2d 
Cir.). 

395 


§  470]  SENTENCE    AND    JUDGMENT  [Chap.  XXXIX 

for  distinct  offenses  of  the  same  character  judgment  may  be  entered 
and  sentence  passed  for  a  specified  term  of  imprisonment  upon 
each  count  and  the  terms  may  be  made  consecutive  and  cumu- 
lative. By  the  common  law,  cumulative  sentences  may  be 
imposed,  the  imprisonment  under  one  to  commence  on  the  termi- 
nation of  that  under  another.  A  sentence  of  imprisonment  to 
commence  upon  the  expiration  of  a  preceding  sentence  is  not 
uncertain  because  by  Revised  Statute  §  5544,  as  amended  by  Act 
of  March  3,  1875,  convicts  who  are  chargeable  with  no  misconduct 
are  entitled  to  a  good  time  credit  on  their  sentences.^  If  the 
punishment  ordered  to  be  inflicted  is  within  the  maximum  pro- 
vided for,  which  could  be  inflicted  upon  one  good  count,  the  validity 
of  the  remaining  counts  will  not  be  reviewed.^  The  material 
part  of  a  judgment  sentencing  one  to  imprisonment  is  that  which 
specifies  the  period  of  incarceration  and  the  place  of  imprisonment, 
and  in  those  respects  it  should  be  definite  and  certain,  but  when  it 
unnecessarily,  fixes  the  time  when  the  term  of  imprisonment 
shall  begin,  such  provision  is  merely  directory  or  provisional, 
and  in  case  the  execution  of  the  sentence  is  suspended,  as  permitted 
by  law,  by  proceedings  in  error,  the  term  is  to  be  computed  from 
the  time  when  the  defendant  is  actually  incarcerated.^ 

§  471.   Judgment  on  Pleas  of  Guilt. 

A  plea  of  guilty  is  equal  to  a  verdict  of  conviction.  It  therefore 
follows,  that  if  the  defendant  enters  such  a  plea,  the  court  must 
still  pronounce  judgment.^ 

§472.   Costs. 
X  Upon  conviction  the  defendant  is  not  chargeable  with  the  fees 

of  or  costs  in  procuring  witnesses  for  the  Government  who  did 
not  testify.^ 

2  Howard    v.    United    States,    75  Fed.  902,  101  C.  C.  A.  182  (6th  Cir.) ; 

Fed.  896;  Chadwick  y.  United  States,  Botsford  i;.  United  States,  215  Fed. 

141  Fed.  225.  510,  132  C.  C.  A.  22  (6th  Cir.). 

^Classon    v.    United    States,    142  Mn  re  Morse,  117  Fed.  763.         ^ 

U.  S.  140,  35  L.  ed.  966,  12  S.  C.  169;  §  471.   i  Green  v.  Commonwealth, 

Harvey  v.   United  States,    159  Fed.  12  Allen  (Mass.),  155. 
419,  86  C.  C.  A.  399  (3d  Cir.) ;   Bar-  §  472.   i  United  States  v.   Miller, 

tholomew    v.     United    States,     177  223  Fed.  183. 
396 


Chap.  XXXIX]      SENTENCE   AND   CORRECTION  —  TERM  [§474 

§  473.   Suspending  Sentence. 

The  District  Court  has  no  power  to  suspend  sentence.^  The 
court  has  a  right  to  temporarily  suspend  its  judgment,  and  continue 
to  do  so  from  time  to  time  in  a  criminal  cause,  for  the  purpose  of 
hearing  and  determining  motions  and  other  proceedings  which 
may  occur  after  verdict,  and  which  may  properly  be  considered 
before  judgment.  But  the  court  cannot  suspend  its  judgment  for 
an  indefinite  time  or  for  no  justifiable  reason  or  cause.^  The  court 
has  the  power,  on  a  motion  of  the  defendant,  to  defer  the  beginning 
of  a  sentence  named  in  the  judgment,  for  such  time  as,  within  the 
judgment  of  the  court,  is  reasonable,  as,  for  instance,  in  case 
of  temporary  illness,  or  a  necessity  involving  the  interest  of  others 
as  well  as  himself,  that  his  affairs  should  be  arranged  or  an  appli- 
cation, in  good  faith,  being  about  to  be  made  to  the  Supreme  Court 
for  a  WTit  of  certiorari,  pending  such  application,  provided  the 
same  be  within  a  reasonable  time.^ 

§  474.   Sentence  and  Correction  —  Term.  \ 

The  rule  in  the  Federal  Court  is  that  a  motion  to  vacate  or  set 
aside  a  judgment  must  be  made  before  the  expiration  of  the  term 
at  which  the  judgment  is  rendered.^  It  is  no  longer  open  to  doubt 
that  within  the  term  and  before  the  sentence  is  carried  out,  a 
defendant  may  move  to  vacate  the  judgment,  and  in  arrest  of  the 
judgment  and  for  new  trial.  These  motions,  particularly  the  one 
in  arrest  of  judgment,  give  the  court  an  opportunity  to  pass  upon 
the  validity  of  the  indictment.  It  is  not  too  late  to  make  these 
motions  after  judgment  if  made  during  the  term.^  When  the 
orderly  procedure  of  appeal  is  employed,  the  case  is  kept  within 
the  control  and  disposition  of  the  courts ;  and  if  the  judgment  be 

§  473.   1  Ex  parte  United  States,  U.  S.  55,  59  L.  ed.  129,  35  S.  C.  16 ; 

242  U.  S.  27,  61  L.  ed.  129,  37  S.  C.  Ex  parte   Cassett,    18  Fed.  86 ;    Ex 

72.  parte  Lange,   18  Wall.   (U.  S.)   163, 

2  United  States  v.  Wilson,  46  Fed.  21  L.  ed.  872 ;  Reynolds  v.  United 
748.  States,  98  U.  S.  145,  25  L.  ed.  244; 

3  Walsh  V.  United  States,  177  Fed.  on  re  Bonner,  151  U.  S.  242,  38  L. 
208,  101  C.  C.  A.  378  (7th  Cir.).  ed.  149,  14  S.   C.   323;    WiHiams  v. 

§  474.  1  United  States  v.  Jenkins,  United  States,  168  U.  S.  382,  42  L. 
176  Fed.  672,  100  C.  C.  A.  224  (4fh  ed.  509,  18  S.  C.  92 ;  Ex  parte 
Cir.).  Waterman,  33  Fed.  29. 


2  United    States    r. '  Mayer,    235 


397 


§  474]  SENTENCE    AND   JUDGMENT  [Chap.  XXXIX 

excessive  or  illegal,  it  may  be  modified  or  changed,  and  complete 
justice  done  to  the  prisoner.' 

§  475.  When  Judgment  Can  Be  Vacated. 

A  judgment  entered  without  jurisdiction  may  be  vacated  at 
any  time.^  Payment  of  a  sum  of  money  to  obtain  release  from 
imprisonment  cannot  be  deemed  voluntary  .^ 

§  476.   Judgments  for  Fmes. 

"  In  all  criminal  or  penal  causes  in  which  judgment  or  sentence 
has  been  or  shall  be  rendered,  imposing  the  payment  of  a  fine  or 
penalty,  whether  alone  or  with  any  other  kind  of  punishment,  the 
said  judgment,  so  far  as  the  fine  or  penalty  is  concerned,  may  be 
enforced  by  execution  against  the  property  of  the  defendant  in 
like  manner  as  judgments  in  civil  cases  are  enforced :  Provided, 
That  where  the  judgment  directs  that  the  defendant  shall  be  im- 
prisoned until  the  fine  or  penalty  imposed  is  paid,  the  issue  of 
execution  on  the  judgment  shall  not  operate  to  discharge  the  de- 
fendant from  imprisonment  until  the  amount  of  the  judgment  is 
collected  or  otherwise  paid."  ^  This  section  means  that  the  Govern- 
ment has  remedies,  other  than  imprisonment,  similar  to  those  of 
private  individuals  for  the  collection  of  their  debts.^  The  im- 
position of  a  fine  does  not  create  a  debt  and  if  the  defendant  dies, 
the  Government  cannot  collect  the  amount  from  the  estate.' 

§  477.   Judgment  Imposing  Fine  Only. 

Where  a  fine  is  imposed  by  the  court,  it  is  discretionary  with 
the  court  whether  it  will  order  the  defendant  in  custody  until 
the  fine  is  paid.^ 

'  Bryant    v.    United    States,    214  Thomas  v.  American  Freehold  Land 

Fed.  51,  130  C.  C.  A.  491  (8th  Cir.) ;  and  Mortgage  Co.,  47  Fed.  550. 

Ex  parte  Spencer,  228  U.  S.  652,  57  =  DevHn  v.  United  States,  12  Ct. 

L.  ed.  1010,  33  S.  C.  709;   Murphy  CI.  266. 

V.    Massachasetts,    177    U.    S.    155,  §476.   i  Revised  Statute   §   1041. 

44  L.  ed.  711,   20  S.  C.  639;    Ball  =  Clark    v.    Allen,    114    Fed.    374. 

V.  United  States,  163  U.  S.  662,  41  L.  Afirmed  in  126  Fed.  738,  62  C.  C.  A. 

ed.  300,  16  S.  C.  1192.  58  (4th  Cir.). 

§  475.   1  Harris    v.    Hardman,    14  =>  United   States   v.    Mitchell,    163 

IIow.  (U.  S.)  344,  14  L.  ed.  444 ;   Ex  Fed.  1014.   Affirmed  in  United  States 

parte Grcn.shaw,  15  Peter  (U.S.),  119,  v.  Dunne,  173  Fed.  254,  97  C.  C.  A. 

10  L.  ed.  682  ;  Shuford  v.  Cain,  1  Abb.  420  (9th  Cir.). 

(U.  S.)  302,  22  Fed.  Cas.  No.  12823 ;  §  477.    •  Matter  of  Jackson,  96  U. 

United  States  v.  WaUace,  46  Fed.  569 ;  S.  727,  24  L.  cd.  877. 

398 


Chap.  XXXIX]  FINES  [§  479 

§  478.  Exemption  Laws. 

Upon  conviction  in  the  Federal  Court  on  a  criminal  charge  carry- 
ing with  it  the  penalty  of  a  fine,  the  prisoner  may  avail  himself  of 
the  exemption  privileges  provided  for  in  §  1042  Revised  Statutes 
of  the  United  States.^ 

§  479.   Remedy  for  Persons  Unable  to  Pay  Fine. 

"  When  a  poor  convict,  sentenced  by  any  court  of  the  United 
States  to  pay  a  fine,  or  fine  and  cost,  whether  with  or  without 
imprisonment,  has  been  confined  in  prison  thirty  days,  solely 
for  the  non-payment  of  such  fine,  or  fine  and  cost,  he  may  make 
application  in  writing  to  any  commissioner  of  the  United  States 
court  in  the  district  where  he  is  imprisoned,  setting  forth  his 
inability  to  pay  such  fine,  or  fine  and  cost,  and  after  notice  to  the 
district  attorney  of  the  United  States,  who  may  appear,  offer 
evidence,  and  be  heard,  the  commissioner  shall  proceed  to  hear 
and  determine  the  matter;  and  if  on  examination  it  shall  appear 
to  him  that  such  convict  is  unable  to  pay  such  fine,  or  fine  and 
cost,  and  that  he  has  not  any  property  exceeding  twenty  dollars 
in  value,  except  such  as  is  by  law  exempt  from  being  taken  on 
execution  for  debt,  the  commissioner  shall  administer  to  him  the 
following  oath :  '  I  do  solemnly  swear  that  I  have  not  any  prop- 
erty, real  or  personal,  to  the  amount  of  twenty  dollars,  except 
such  as  is  by  law  exempt  from  being  taken  on  civil  percept  for 
debt  by  the  laws  of  (State  where  oath  is  administered) ;  and  that 
I  have  no  property  in  any  way  conveyed  or  concealed,  or  in  any 
way  disposed  of,  for  my  future  use  or  benefit.  So  help  me  God.' 
And  thereupon  such  convict  shall  be  discharged,  the  commissioner 
giving  to  the  jailer  or  keeper  of  the  jail  a  certificate  setting  forth 
the  facts."  ^  Although  there  is  no  statute  providing  that  a  fine 
imposed  may  be  enforced  by  imprisonment  until  it  is  paid,  this 
section  implies  that  this  may  be  done  but  it  is  not  to  be  construed 
to  indicate  that  it  may  be  extended  beyond  the  maximum  term 
of  imprisonment  fixed  for  that  particular  offense.^  The  word  jail 
in  the  section  refers  to  a  place  of  confinement  and  a  Federal  prisoner 

§478.   1  Clark  v.  AUen,  114  Fed.  =  In  re  Greenwald,   77  Fed.   590; 

374.  Ex  parte  Peeke,  144  Fed.  1016. 

§479.   1  Revised    Statute   §  1042. 
Same  as  Revised  Statute  §  5296. 

399 


§  479]  SENTENCE   AND   JUDGMENT  [Chap.  XXXIX 

can  be  detained  there  until  the  term  of  imprisonment  for  non- 
payment of  the  fine  expires.^  This  section  and  the  preceding 
Section  1041  are  to  be  construed  together  as  putting  the  United 
States  on  the  same  footing  with  civil  creditors  and  as  giving  the 
families  of  poor  convicts  the  benefit  of  the  homestead  exemption 
laws.^  On  the  reversal  of  an  order  of  habeas  cor  pits  which  erro- 
neously discharged  the  prisoner,  the  United  States  can  return  him 
to  the  penitentiary  where  he  will  be  detained  until  he  is  dis- 
charged or  has  taken  the  oath  under  this  section.^ 

§  480.   Designation  of  Place  of  Imprisonment. 

A  Federal  Court  has  power  to  sentence  a  defendant  to  be  con- 
fined in  the  penitentiary  located  in  another  district  where  no 
suitable  place  is  to  be  had  within  the  district  where  the  court  is 
located.^ 

3  Haddox  v.  Richardson,  168  Fed.  ^  Haddox  v.  Richardson,  168  Fed. 

635,  94  C.  C.  A.  171  (4th  Cir.).  635,  94  C.  C.  A.  171  (4th  Cir.). 

*  Allen   V.    Clark,    114   Fed.    374.  §480.   i  United  States  v.  McMa- 

Affirmed  126  Fed.  738,  62  C.  C.  A.  hon,   164  U.  S.   81,  41   L.  ed.   357, 

58   (4th  Cir.) ;    Fink  v.  O'Neil,   106  17  S.  C.  28 ;  Haynes  v.  United  States, 

U.  S.  272,  27  L.  ed.  196,  1  S.  C.  325.  101  Fed.  818,  42  C.  C.  A.  34  (8th  Cir.). 


400 


CHAPTER   XL 
PAROLE  ACT 

§  481.      Conditions  of  Prisoner's  Release  on  Parole. 

§  482.      Boards  of  Parole. 

§  483.      Application  for  Parole. 

§  484.      Violation  of  Parole  —  Warrant  for  Retaking  Prisoner. 

§  485.       Officers  Authorized  to  Execute  Warrant  —  Expenses. 

§  486.      Action  by  Board  on  Issue  of  Warrant  —  Revocation  of  Parole. 

§  487.      Parole    Officer    for    Each    Penitentiary  —  Supervision    of    Paroled 
Prisoners  by  Marshals. 

§  488.       Gratuities  or  Transportation  to  Paroled  Prisoners. 

§  489.      United   States   Prisoners   in   State   Reformatories  —  Parole   under 
State  Laws. 

§  490.      Power  of  President  to  Grant  Pardon  or  Commutation  or  Good  Time 
Allowance  by  Act  of  Congress. 

§  49L      Location  and  Erection  of  Government  Prisons. 

§  492.      Employment  of  Convicts. 

§  493.      Selection  of  Location  of  Prisons. 

§  494.       Prison  Officers  —  Rules. 

§  495.      Prisoner's  Transportation  —  Expenses. 

§  496.      Transportation  Home  of  Discharged  Prisoners. 

§  497.      Confinement  of  Juvenile  Offenders  —  Confinement  of  Prisoners  in 
the  United  States  Military  Prison. 

§  498.       Deductions  from  Term  for  Good  Conduct. 

§  499.      Designation  of  Penitentiary  —  Separation  of  Youthful  Prisoners. 

§  500.      Actual  Reasonable  Cost  of  Subsistence  Paid. 

§501.      Designation  of  Penitentiary  —  Transportation  of  Prisoners  —  Ex- 
penses —  Change  of  Place  of  Imprisonment. 

§  502.       Contracts  for  Subsistence. 

§  503.      Ordering  Sentences  Executed  in  House  of  Correction. 

§  504.      Juvenile  Offenders. 

§  505.      Contracts  for  Subsistence  —  Juvenile  Offenders. 

§  505  a.   Discretion  of  Attorney-General. 

§  506.      Furnishing  Clothing  and  Money  to  Discharged  Prisoners. 
VOL.  1  —  26  401 


§  481]  PAROLE   ACT  [Chap.  XL 

§  481.   Conditions  of  Prisoner's  Release  on  Parole. 

"That  every  prisoner  who  has  been  or  may  hereafter  be  con- 
victed of  any  offense  against  the  United  States  and  is  confined  in 
execution  of  the  judgment  of  such  conviction  in  any  United  States 
penitentiary  or  prison,  for  a  definite  term  or  terms  of  over  one 
year,  or  for  the  term  of  his  natural  life,  whose  record  of  conduct 
shows  that  he  has  observed  the  rules  of  such  institution,  and  who, 
if  sentenced  for  a  definite  term,  has  served  one  third  of  the  total 
of  such  term  or  terms  for  which  he  was  sentenced,  or,  if  sentenced 
for  the  term  of  his  natural  life,  has  served  not  less  than  fifteen  years, 
may  be  released  on  parole  as  hereinafter  provided."  ^  Where  the 
prisoner's  sentence  of  eight  years  was  commuted  to  four  years,  he 
is  eligible  for  parole  when  he  has  served  one  third  of  his  com- 
muted sentence  of  four  years.^  Parole  is  tantamount  to  com- 
mutation as  it  substitutes  a  lesser  punishment  for  a  greater  one.^ 
Where  the  prisoner  is  in  jail  serving  two  sentences,  the  second  of 
which  was  illegally  imposed,  he  is  eligible  for  release  on  parole 
when  he  has  served  one  third  of  the  first  and  valid  sentence.'* 

§  482.  Boards  of  Parole. 

"  That  the  superintendent  of  prisons  of  the  Department  of 
Justice  and  the  warden  and  physician  of  each  United  States 
Penitentiary  shall  constitute  a  board  of  parole  for  such  prison, 
which  shall  establish  rules  and  regulations  for  its  procedure  subject 
to  the  approval  of  the  Attorney-General.  The  chief  clerk  of 
such  prison  shall  be  clerk  of  said  board  of  parole,  and  meetings 
shall  be  held  at  each  prison  as  often  as  the  regulations  of  such 
board  shall  provide :  Provided,  That  in  every  case  where  a  prison 
other  than  a  United  States  Penitentiary  is  used  for  the  confine- 
ment of  such  prisoners  it  shall  be  the  duty  of  the  Attorney-General 
to  designate  the  officers  of  said  prison,  who,  together  with  the 
superintendent  of  prisons,  shall  constitute  such  board  for  said 
prison."  ^ 

§  481.    1  Act    of    June    25,    1910,  '  Duehay  v.   Thompson,   supra. 

c.  387,  §  1,  3G  Stat.  L.  819,  amended  ^O'Brien     v.     McClaughry,     209 

Jan.  23,  1913,  c.  9,  37  Stat.  L.  650.  Fed.   816,    126    C.    C.    A.    540    (8th 

*  Duehay  v.  Thompson,  223  Fed.  Cir.). 
305,    138  C.   C.   A.   .'307   (9th  Cir.),  §482.   i  Act    of    June    25,    1910, 

A  firming  217  Fed.  484.  ch.  387,  §  2,  36  Stat.  L.  819. 

402 


Chap.  XL]  VIOLATION   OF   PAROLE  [§  484 

§  483.  Application  for  Parole. 

"  That  if  it  shall  appear  to  said  board  of  parole  from  a  report 
by  the  proper  officers  of  such  prison  or  upon  application  by  a 
prisoner  for  release  on  parole,  that  there  is  a  reasonable  probability 
that  such  applicant  will  live  and  remain  at  liberty  without  violating 
the  laws,  and  if  in  the  opinion  of  the  board  such  release  is  not  in- 
compatible with  the  welfare  of  society,  then  said  board  of  parole 
may  in  its  discretion  authorize  the  release  of  such  applicant  on 
parole,  and  he  shall  be  allowed  to  go  on  parole  outside  of  said 
prison,  and,  in  the  discretion  of  the  board,  to  return  to  his  home, 
upon  such  terms  and  conditions,  including  personal  reports  from 
such  paroled  person,  as  said  board  of  parole  shall  prescribe,  and 
to  remain  while  on  parole,  in  the  legal  custody  and  under  the 
control  of  the  warden  of  such  prison  from  which  paroled,  and 
until  the  expiration  of  the  term  or  terms  specified  in  his  sentence, 
less  such  good  time  allowance  as  is  or  may  hereafter  be  provided 
for  by  Act  of  Congress ;  and  the  said  board  shall,  in  every  parole, 
fix  the  limits  of  the  residence  of  the  person  paroled,  which  limits 
may  thereafter  be  changed  in  the  discretion  of  the  board :  Provided, 
That  no  release  on  parole  shall  become  operative  until  the  findings 
of  the  board  of  parole  under  the  terms  hereof  shall  have  been 
approved  by  the  Attorney-General  of  the  United  States."  ^ 
"  Legal  custody  "  and  "  control  "  as  used  in  this  act  do  not  con- 
template actual  custody  or  confinement,  for  the  paroled  prisoner 
can  go  outside  of  the  prison  in  the  discretion  of  the  board  and 
transportation  is  furnished  to  the  place  where  he  wants  to  go.^ 
Under  this  section  it  was  held :  "It  must  appear  to  the  board 
by  showing  in  the  manner  prescribed  that  there  is  reasonable 
probability  that  the  applicant  for  a  parole  will  abide  by  the  law ; 
and  if  in  the  belief  or  judgment  of  the  board  his  release  is  not 
incompatible  with  the  welfare  of  society,  the  board  may,  in  its 
discretion,  authorize  parole."  ^ 

§  484.  Violation  of  Parole  —  Warrant  for  Retaking  Prisoner. 
"  That  if  the  warden  of  the  prison  or  penitentiary  from  which 
said  prisoner  was  paroled  or  said  board  of  parole  or  any  member 

§  483.   1  Act  of  June  25,  1910,  ch.  ^  Per    Hunt,    J.,    in     Redman    v. 

387,  §  3,  36  Stat.  L.  819.  Duehay,  246  Fed.  283,  159  C.  C.  A. 

2  Ex  parte  MarcU,  207  Fed.  809.      13  (9th  Cir.). 

403 


§  484]  PAROLE  ACT  [Chap.  XL 

thereof  shall  have  reliable  information  that  the  prisoner  has 
violated  his  parole,  then  said  warden,  at  any  time  within  the  term 
or  terms  of  the  prisoner's  sentence,  may  issue  his  warrant  to  any 
officer  hereinafter  authorized  to  execute  the  same,  for  the  retaking 
of  such  prisoner."  ^  This  section  refers  to  the  consequence  of 
the  violation  of  this  act.^ 

§  485.   Officers  Authorized  to  Execute  Warrant  —  Expenses. 

"  That  any  officer  of  said  prison  or  any  federal  officer  authorized 
to  serve  criminal  process  within  the  United  States,  to  whom  such 
warrant  shall  be  delivered,  is  authorized  and  required  to  execute 
such  warrant  by  taking  such  prisoner  and  returning  him  to  said 
prison  within  the  time  specified  in  said  warrant  therefor.  All 
necessary  expenses  incurred  in  the  administration  of  this  Act 
shall  be  paid  out  of  the  appropriation  for  the  prison  in  connection 
with  which  such  expense  was  incurred,  and  such  appropriation  is 
hereby  made  available  therefor."  ^ 

§  486.  Action  by  Board  on  Issue  of  Warrant  —  Revocation  of 
Parole. 

"  That  at  the  next  meeting  of  the  board  of  parole  held  at  such 
prison  after  the  issuing  of  a  warrant  for  the  retaking  of  any 
paroled  prisoner,  said  board  of  parole  shall  be  notified  thereof, 
and  if  said  prisoner  shall  have  been  returned  to  said  prison,  he 
shall  be  given  an  opportunity  to  appear  before  said  board  of 
parole,  and  the  said  board  may  then  or  at  any  time  in  its  dis- 
cretion revoke  the  order  and  terminate  such  parole  or  modify  the 
terms  and  conditions  thereof.  If  such  order  of  parole  shall 
be  revoked  and  the  parole  so  terminated,  the  said  prisoner  shall 
serve  the  remainder  of  the  sentence  originally  imposed;  and 
the  time  the  prisoner  was  out  on  parole  shall  not  be  taken  into 
account  to  diminish  the  time  for  which  he  was  sentenced."  ^  If  a 
prisoner  violates  his  parole,  he  is  not  entitled  to  any  commutation 
for  good  behavior  in  serving  the  remainder  of  the  sentence.^ 

§  484.   '  Act    of    June    25,     1910,  §  486.   ^  Act    of    June    25,     1910, 

ch.  387,  §  4,  36  Stat.  L.  820.  ch.  387,  §  6,  36  Stat.  L.  820.  * 

2  Halligun  v.  Marcil,  208  Fed.  403,  ^  Halligan    v.    Marcil,    208    Fed. 

125  C.  C.  A.  619  (9th  Cir.).  403,  125  C.  C.  A.  G19  (9th  Cir.). 

§  485.   '  Act    of    June    25,     1910, 
ch.  387,  §  5,  36  Stat.  L.  820. 
404 


Chap.  XL]  PAEOLE  OFFICERS  [§  489 

§  487.  Parole  Officer  for  Each  Penitentiary  —  Supervision  of 
Paroled  Prisoners  by  Marshals. 

"  That  each  board  of  parole  shall  appoint  a  parole  officer  for 
the  penitentiary  over  which  it  has  jurisdiction.  Subsequent  to 
the  direction  and  control  of  such  board,  it  shall  be  the  duty  of  such 
officer  to  aid  paroled  prisoners  in  securing  employment  and  to 
visit  and  exercise  supervision  over  them  while  on  parole,  and  such 
officer  shall  have  such  authority  and  perform  such  other  duties  as 
the  board  of  parole  may  direct.  The  salary  of  each  parole  officer 
shall  be  fixed  by  the  board  of  parole,  but  shall  not  exceed  one 
thousand  five  hundred  dollars  per  annum,  which,  together  with 
his  actual  and  necessary  traveling  expenses,  when  approved  by 
such  board,  shall  be  paid  out  of  the  appropriation  for  the  mainte- 
nance of  the  penitentiary  to  which  he  is  assigned,  which  appro- 
priation is  hereby  made  available  for  the  purpose.  In  addition 
to  such  parole  officers  the  supervision  of  paroled  prisoners  may 
also  be  devolved  upon  the  United  States  marshals  when  the 
board  of  parole  may  deem  it  necessary."  ^ 

§  488.   Gratuities  or  Transportation  to  Paroled  Prisoners. 

"  That  it  shall  be  the  duty  of  the  warden  to  furnish  to  any  and 
all  paroled  prisoners  the  usual  gratuities,  consisting  of  clothing, 
transportation,  and  five  dollars  in  money;  the  transportation 
furnished  shall  be  to  the  place  to  which  the  paroled  prisoner  has 
elected  to  go,  with  the  approval  of  the  board  of  parole.  The 
warden  of  the  prison  who  furnishes  these  gratuities  is  hereby 
authorized  to  charge  the  actual  cost  of  the  same  in  his  accounts 
against  the  United  States  ;  Provided,  however,  That  when  any  such 
paroled  prisoner  shall  have  received  his  final  discharge,  while 
he  is  away  from  such  prison,  he  shall  be  entitled  to  no  further 
gratuities  provided  for  discharged  prisoners  under  existing  law."  ^ 

§  489.  United  States  Prisoners  in  State  Reformatories  — 
Parole  under  State  Laws. 

"  That  whenever  any  person  has  been  convicted  of  any  offense 
against  the  United  States  which  is  punishable  by  imprisonment, 

§487.   lAct    of    June    25,    1910,  §488.   ^  Act    of    June    25,    1910, 

ch.  387,  §  7,  36  Stat.  L.  820.  ch.  387,  §  8,  36  Stat.  L.  820. 

405 


§  489]  PAROLE   ACT  [Chap.  XL 

and  has  been  sentenced  to  imprisonment  and  is  confined  therefore, 
in  any  reformatory  institution  of  any  State  in  accordance  with 
section  fifty-five  hundred  and  forty-eight  of  the  Revised  Statutes, 
or  other  laws  of  the  United  States,  then  if  such  state  has  laws  for 
the  parole  of  prisoners  committed  to  such  institutions  by  the 
courts  of  that  State,  such  person  convicted  of  any  offense  against 
the  United  States  shall  be  eligible  to  parole  on  the  same  terms 
and  conditions  and  by  the  same  authority  and  subject  to  re- 
committal for  violation  of  such  parole  in  the  same  manner,  as 
persons  committed  to  such  institutions  by  the  courts  of  said  State, 
and  the  laws  of  said  State  relating  to  the  parole  of  prisoners  and 
the  supervision  thereof  in  such  institutions  are  hereby  adopted 
and  made  to  apply  to  persons  committed  to  such  institutions  for 
offenses  against  the  United  States.  The  necessary  cost  of  parole 
and  supervision  of  such  prisoners,  to  the  State  where  such  in- 
stitution is  located  shall  be  paid  by  the  United  States  out  of  the 
appropriation  for  the  support  of  prisoners  confined  in  state  in- 
stitutions, which  appropriation  is  hereby  made  available  for  the 
purpose.  No  such  prisoner  shall  be  entitled  to  go  on  parole 
until  the  Attorney-General  shall  have  approved  the  order  there- 
for; Provided,  That  when  a  prisoner  is  committed  to  such  in- 
stitution outside  of  the  State  where  he  lives  he  may  be  permitted 
by  his  parole  to  return  to  his  home,  and  in  such  case  the  super- 
vision of  such  prisoner  on  parole  shall  devolve  upon  the  marshal 
of  the  district  where  said  prisoner  lives,  and  in  case  such  prisoner 
should  violate  his  parole  a  warrant  for  his  recommitment  shall 
be  delivered  to  and  executed  by  said  marshal."  ^ 

§  490.  Power  of  President  to  Grant  Pardon  or  Commutation 
or  Good  Time  Allowance  by  Act  of  Congress. 

"  That  nothing  herein  contained  shall  be  construed  to  impair 
the  power  of  the  President  of  the  United  States  to  grant  a  pardon 
or  commutation  in  any  case,  or  in  any  way  impair  or  revoke  such 
good  time  allowance  as  is  or  may  hereafter  be  provided  by  Act  of 
Congress."  ^  The  President's  power  to  commute  is  conferred 
upon  him  by  the  Constitution,  and  cannot  be  affected  by  legis- 

§  489.   '  Act  of  June  25,  1910,  c.  §  490.   i  Act  of  June  25,  1910,  &. 

387,  §  9,  36  Stat.  L.  821.  387,  §  10,  36  Stat.  L.  821. 

406 


Chap.  XL]  EMPLOYMENT  OF  CONVICTS  [§  492 

lative  action  or  impaired  or  undetermined  in  any  particular.* 
The  commutation  by  the  President  does  not  substitute  a  punish- 
ment for  that  of  the  court  but  is  a  mere  modification  thereof.' 

§  491.  Location  and  Erection  of  Government  Prisons. 

"  That  the  Attorney-General  and  Secretary  of  the  Interior  be, 
and  are  hereby  authorized  and  directed  to  purchase  three  sites, 
two  of  which  shall  be  located  as  follows :  one  north,  the  other 
south  of  the  thirty-ninth  degree  of  north  latitude  and  east  of  the 
Rocky  ]\Iountains,  the  third  site  to  be  located  west  of  the  Rocky 
Mountains,  and  the  same  to  be  located  geographically  as  to  be  most 
easy  of  access  to  the  different  portions  of  the  country,  and  cause 
to  be  erected  thereon  suitable  buildings  for  the  confinement  of  all 
persons  convicted  of  any  crime  whose  term  of  imprisonment  is 
one  year  or  more  at  hard  labor  by  any  court  of  the  United  States 
in  any  State,  Territory  or  District,  under  the  jurisdiction  of  the 
Department  of  Justice  .  of  the  United  States,  and  the  plans, 
specifications  and  estimates  of  such  sites  and  buildings  shall  be 
previously  made  and  approved  according  to  law,  and  shall  not 
exceed  the  sum  of  five  hundred  thousand  dollars  each."  ^  The 
erection  of  government  prisons  is  left  to  the  discretion  of  Congress 
and  the  courts  have  no  control  in  this  matter.^  This  section  refers 
to  such  crimes  as  the  statutes  make  punishable  by  hard  labor.' 

§  492.   Employment  of  Convicts. 

"  That  the  sum  of  one  hundred  thousand  dollars  is  further 
appropriated,  to  be  expended  under  the  discretion  of  the  Attorney- 
General,  in  the  fitting  of  workshops  for  the  employment  of  the 
prisoners :  Provided,  however,  that  the  convicts  be  employed 
exclusively  in  the  manufacture  of  such  supplies  for  the  Govern- 
ment as  can  be  manufactured  without  the  use  of  machinery, 
and  the  prisoners  shall  not  be  worked  outside  the  prison  en- 
closure." ^ 

2  Thompson  v.  Duehay,  217  Fed.  ^  Ex  parte  Karstendick,  93  U. 
484.  S.  396,  23  L.  ed.  889. 

3  Duehay  v.  Thompson,  223  Fed.  '  Mitchell  v.  United  States,  196 
305,  138  C.  C.  A.  507  (9th  Cir.).  Fed.  874,  116  C.  C.  A.  436  (9th  Cir.). 

§  491.   1  Act  of  March  3,  1891,  c.  ^  492.   i  Act  of  March  3,  1891,  c. 

529,  §  1,  26  Stat.  L.  839.  529,  §  2,  26  Stat.  L.  839. 

407 


§  493]  PAROLE   ACT  [Chap.  XL 

§  493.   Selection  of  Location  of  Prisons. 

"  That  the  Attorney-General  and  the  Secretary  of  the  Interior 
be,  and  are  hereby  authorized  to  select  the  State,  District  or 
Territory,  in  which  to  locate  and  erect  the  prisons;  Provided, 
That  the  consent  of  the  authorities  of  such  State,  District  or 
Territory  be  first  obtained."  ^ 

§  494.  Prison  Officers  —  Rules. 

"  That  the  control  and  management  of  said  prisons  be  vested 
in  the  Attorney-General,  who  shall  have  power  to  appoint  a 
superintendent,  assistant  superintendent,  warden,  keeper,  and 
all  other  officers  necessary  for  the  safe-keeping,  care,  protection 
and  discipline  of  such  United  States  prisoners.  He  shall  also  have 
authority  to  promulgate  such  rules  for  the  government  of  the 
officials  of  said  prisons  and  prisoners  as  he  may  deem  proper  and 
necessary."  ^ 

§  495.  Prisoners'  Transportation  —  Expenses. 

"  That  the  transportation  of  all  United  States  prisoners  con- 
victed of  crimes  against  the  laws  of  the  United  States  in  any  State, 
District  or  Territory,  and  sentenced  to  terms  of  imprisonment  in  a 
penitentiary,  and  their  delivery  to  the  superintendent,  warden  or 
keeper  of  such  United  States  prisons,  shall  be  by  the  marshal 
of  the  District  or  Territory  where  such  conviction  may  occur,  after 
the  erection  and  completion  of  said  prisons.  That  the  actual 
expenses  of  such  marshal,  including  transportation  and  subsistence* 
hire,  transportation  and  subsistence  of  guards,  and  the  transporta- 
tion and  subsistence  of  the  convict  or  convicts,  be  paid,  on  the 
approval  of  the  Attorney-General,  out  of  the  judiciary  fund."  ^ 

§  496.   Transportation  Home  of  Discharged  Prisoners. 

"  Every  prisoner  when  discharged  from  the  jail  and  prison 
shall  be  furnished  with  transportation  to  the  place  of  his  residence 
within  the  United  States  at  the  time  of  his  commitment  under 
sentence  of  the  court,  and  if  the  term  of  his  imprisonment  shall 
have  been  for  one  year  or  more,  he  shall  also  be  furnished  with 

§  493.   »  Act  of  March  3,  1891,  c.  §  495.   '  Act  of  March  3,  1891,  c. 

529,  §  .3,  26  Stat.  L.  839.  529,  §  5,  26  Stat.  L.  839. 

§  494.    1  Act  of  March  3,  1891,  c. 
629,  §  4,  20  Stat.  L.  839. 

408 


Chap.  XL]   DEDUCTIONS  FROM  TERM  FOR  GOOD  CONDUCT   [§  498 

suitable  clothing,  the  cost  not  to  exceed  twelve  dollars,  and  five 
dollars  in  money."  ^ 

§  497.  Confinement  of  Juvenile  Offenders  —  Confinement  of 
Prisoners  in  the  United  States  Military  Prison. 

"  This  act  shall  not  apply  to  minors,  who,  in  the  judgment  of  the 
judges  presiding  over  United  States  Courts,  shall  be  committed  to 
reformatory  institutions.  And  Provided,  that  nothing  in  this  act 
shall  be  construed  as  prohibiting  the  courts  of  the  United  States 
from  sentencing  to  or  confining  prisoners,  either  civil  or  military,  in 
the  United  States  Military  prison  at  Fort  Leavenworth,  Kansas."  i 

§  498.  Deductions  from  Term  for  Good  Conduct. 

"  The  said  Attorney-General,  in  formulating  rules  and  regu- 
lations for  the  conduct  of  said  prisons,  is  hereby  authorized  to 
establish  rules  for  commutation  for  good  behavior  of  said  con- 
victs, but  not  for  a  longer  time  than  two  months  for  the  first 
year's  imprisonment,  and  two  months  for  each  succeeding  year.  "^ 
The  prisoner's  term  of  sentence  begins  to  run  from  the  first  day  of 
sentence  and  commutation  for  good  behavior  is  figured  accord- 
ingly.^ This  section  has  been  enlarged  and  modified  by  the  Act 
of  June  21,  1902,  c.  1140,  32  Stat.  L.  397,  to  the  effect:  "That 
each  prisoner  who  has  been  or  shall  hereafter  be  convicted  of 
any  offense,  against  the  laws  of  the  United  States,  and  is  confined, 
in  execution  of  the  judgment  or  sentence  upon  any  such  conviction, 
in  any  United  States  penitentiary  or  jail,  or  in  any  penitentiary, 
prison,  or  jail  of  any  State  or  Territory,  for  a  definite  term,  other 
than  for  life,  whose  record  of  conduct  shows  that  he  has  faith- 
fully observed  all  the  rules  and  has  not  been  subjected  to  punish- 
ment, shall  be  entitled  to  a  deduction  from  the  term  of  his  sentence 
to  be  estimated  as  follows,  commencing  on  the  first  day  of  his 
arrival  at  the  penitentiary,  prison  or  jail :  Upon  a  sentence  of  not 
less  than  six  months  nor  more  than  one  year,  five  days  for  each 
month ;  upon  a  sentence  of  more  than  one  year  and  less  than  three 
years,  six  days  for  each  month ;  upon  a  sentence  of  not  less  than 
three  years  and  less  than  five  years,  seven  days  for  each  month ; 

§  496.   1  Act  of  March  3,  1891,  c.  §  498.   i  Act  of  March  3,  1891,  c. 

529,  §  6,  26  Stat.  L.  840.  529,  §  8,  26  Stat.  L.  840. 

§497.   lAct  of  March  3,  1891,  c.  ^  j^  re   Jennings,    118   Fed.   479. 

529,  §  7,  26  Stat.  L.  840. 

409 


§  498]  PAROLE  ACT  [Chap.  XL 

upon  a  sentence  of  not  less  than  five  years  and  less  than  ten  years 
eight  days  for  each  month ;  upon  a  sentence  of  ten  years  or  more, 
ten  days  for  each  month.  When  a  prisoner  has  two  or  more 
sentences,  the  aggregate  of  his  several  sentences  shall  be  the 
basis  upon  which  his  deduction  shall  be  estimated."  This  Act  has 
no  reference  to  prisoners  sentenced  previous  to  its  enactment.' 

§  499.  Designation  of  Penitentiary  —  Separation  of  Youthful 
Prisoners. 

"  That  the  Attorney-General  shall  be  authorized  to  designate 
to  which  of  said  prisons  persons  convicted  in  such  States  or  Terri- 
tories shall  be  carried  for  confinement :  Promded,  That  in  the 
construction  of  the  prison  buildings  provided  for  in  this  act  there 
shall  be  such  arrangement  of  cells  and  yard  space  as  that  prisoners 
under  twenty  years  of  age  shall  not  be  in  any  way  associated  with 
prisoners  above  that  age,  and  the  management  of  the  class  under 
twenty  years  of  age  shall  be  as  far  as  possible  reformatory."  ^ 

§  500.  Actual  Reasonable  Cost  of  Subsistence  Paid. 

"  Hereafter  there  shall  be  allowed  and  paid  by  the  Attorney- 
General  for  the  subsistence  of  prisoners  in  the  custody  of  any 
marshal  of  the  United  States  and  the  warden  of  the  jail  in  the 
District  of  Columbia,  such  sum  only  as  it  reasonably  and  actually 
cost  to  subsist  them.  And  it  shall  be  the  duty  of  the  Attorney- 
General  to  prescribe  such  regulations  for  the  government  of  the 
marshals  and  the  warden  of  the  jail  in  the  District  of  Columbia,  in 
relation  to  their  duties  under  this  chapter,  as  will  enable  him  to 
determine  the  actual  and  reasonable  expenses  incurred."  ^ 

§  501.  Designation  of  Penitentiary  —  Transportation  of  Pris- 
oners —  Expenses  —  Change  of  Place  of  Imprisonment. 

"  All  persons  who  have  been,  or  who  may  hereafter  be,  con- 
victed of  crime  by  any  court  of  the  United  States,  including  con- 
sular courts,  whose  punishment  is  imprisonment  in  a  District  or 
Territory  or  country  where,  at  the  time  of  conviction  or  at  any  time 

'  Woodward  v.  Bridges,   144  Fed.  §  499.   i  Act  of  March  3,  1891,    c. 

156 ;    United  States  v.  Jackson,   143  529,  §  9,  26  Stat.  L.  840. 
Fed.  783,  75  C.  C.  A.  41  (9th  Cir.) ;  §  500.  '  Act    of    May    12,    1864, 

United   States   v.   Farrar,    139   Fed.  c.  85,  13  Stat.  L.  75;   Act  of  March 

260,  71  C.  C.  A.  386  (2d  Cir.) ;    In  5,  1872,  c.  30,  17  Stat.  L.  35. 
re  Walters,  128  Fed.  791. 
410 


Chap.  XL]  DESIGNATION   OF   PENITENTIARY  [§501 

during  the  term  of  imprisonment,  there  may  be  no  penitentiary, 
or  jail  suitable  for  the  confinement  of  convicts,  or  available  therefor, 
shall  be  confined  dm-ing  the  term  for  which  they  have  been  or 
may  be  sentenced,  or  during  the  residue  of  said  term,  in  some 
suitable  jail  or  penitentiary  in  a  convenient  State  or  Territory, 
to  be  designated  by  the  Attorney-General,  and  shall  be  transported 
and  delivered  to  the  warden  or  keeper  of  such  jail  or  penitentiary 
by  the  marshal  of  the  District  or  Territory  where  the  conviction 
has  occurred ;  and  in  case  of  convictions  by  a  consular  court  the 
transportation  shall  be  by  some  properly  qualified  agent  or  agents 
designated  by  the  Department  of  State,  the  reasonable  actual 
expense  of  transportation,  necessary  subsistence,  and  hire  and 
transportation  of  guards  and  agent  or  agents  to  be  defrayed  from 
the  appropriation  for  bringing  home  criminals;  and  if  the  con- 
viction be  had  in  the  District  of  Columbia,  the  transportation  and 
delivery  shall  be  by  the  warden  of  the  jail  of  that  District,  the 
reasonable  actual  expense  of  transportation,  necessary  subsistence, 
and  hire  and  transportation  of  guards  and  the  marshal,  or  the 
warden  of  the  jail  in  the  District  of  Columbia  only,  to  be  paid  by 
the  Attorney-General  out  of  the  judiciary  fund.  But  if,  in  the 
opinion  of  the  Attorney-General,  the  expense  of  transportation 
from  any  State,  Territory,  or  the  District  of  Columbia  in  which 
there  is  no  penitentiary  will  exceed  the  cost  of  maintaining  them 
in  jail  in  the  State,  Territory,  or  the  District  of  Columbia,  during 
the  period  of  their  sentence,  then  it  shall  be  lawful  so  to  confine 
them  therein  for  the  period  designated  in  their  respective  sentences. 
And  the  place  of  imprisonment  may  be  changed  in  any  case  when,  in 
the  opinion  of  the  Attorney-General,  it  is  necessary  for  the  pres- 
ervation of  the  health  of  the  prisoner,  or,  when,  in  his  opinion, 
the  place  of  confinement  is  not  sufficient  to  secure  the  custody  of 
the  prisoner,  or  because  of  cruel  and  improper  treatment :  Pro- 
vided, however,  That  no  change  shall  be  made  in  the  case  of  any 
prisoner  on  the  ground  of  the  unhealthiness  of  the  prisoner  or 
because  of  his  treatment,  after  his  conviction  and  during  his  term 
of  imprisonment,  unless  such  change  shall  be  applied  for  by  such 
prisoner,  or  some  one  in  his  behalf."  ^     The  object  of  this  section 

§  501.   1  As  amended  by    Act  of      and  Act  of  March  3,  1901,  c.  873, 
July  12,  1876,  c.  183,  19  Stat.  L.  88,      31  Stat.  L.  1450. 

411 


§  501]  PAROLE  ACT  [Chap.  XL 

is  to  define  the  duties  of  the  Attorney-General  when  there  is  no 
jail  or  penitentiary  in  the  district  where  the  prisoner  is  convicted.^ 
This  section  is  to  be  construed  with  the  other  sections ;  it  may  be 
treated  as  a  proviso  to  sections  5541  and  5542.^  The  courts  cannot 
order  the  sentence  to  be  served  in  a  certain  penitentiary,  if  the 
statutes  assign  that  penitentiary  for  the  service  of  sentences  for 
offenses  of  a  different  type.^  If  the  statutory  contingencies 
have  not  been  complied  with,  as  to  changing  the  place  of  confine- 
ment, the  prisoner  should  consent  or  have  notice  before  the  sen- 
tence of  the  court  is  changed.^  The  Attorney-General  has  the 
power  to  change  the  place  of  imprisonment  of  a  prisoner  because 
of  his  health,  but  the  court  cannot  order  such  removal  after  the 
term  has  expired,^  Under  this  section,  a  prisoner  cannot  be  sent 
to  a  penitentiary  a  great  distance  from  his  home  if  there  is  no 
finding  by  the  Attorney-General  that  a  penitentiary  in  the  dis- 
trict is  not  available/ 

§  502.   Contracts  for  Subsistence. 

"  The  Attorney-General  shall  contract  with  the  managers  or 
proper  authorities  having  control  of  such  prisoners,  for  the  im- 
prisonment, subsistence,  and  proper  employment  of  them,  and 
shall  give  the  court  having  jurisdiction  of  such  offenses  notice  of 
the  jail  or  penitentiary  where  such  prisoners  will  be  confined."  ^ 
Under  this  section  it  appears  that  the  Attorney-General  shall 
contract  for  the  maintenance,  under  certain  circumstances,  of 
prisoners  in  state  penitentiaries.^ 

§  503.   Ordering  Sentences  Executed  in  House  of  Correction. 
"  Whenever  any  person  is  convicted  of  any  offense  against  the 
United  States  which  is  punishable  by  fine  and  imprisonment,  or 

2  United     States     v.     McMahon,  ^  United  States  v.  Greenwald,  64 

164  U.  S.  81,  41  L.  ed.  357,  17  S.  C.  Fed.  6 ;    United  States  v.  Lane,  221 

28 ;    United  States  v.  Cobb,  43  Fed.  Fed.  299. 

670;  ExpartcMcClusky,  40Fed.  71.  Hveliher   v.    MitcheU,    250    Fed. 

"Ex    parte    Karstendick,    93    U.  904. 

S.  390,  23  L.  od.  889.  §  502.   i  Act  of  May  12,  1864,  c. 

*  In   re  Bonner,    151   U.  S.   242,  85,  13  Stat.  L.  75 ;   Act  of  March  5, 

38  L.  ed.  149,  14  S.  C.  323.  1872,  c.  30,  17  Stat.  L.  35. 

^  United  States  v.  Lane,  221  Fed.  ^  County  of  Lewis  and  Clarke  v. 

299.  United  States,  77  Fed.  732. 
412 


Chap.  XL]  DISCRETION    OF    ATTORNEY-GENERAL  [§  505  a 

by  either,  the  court  by  which  the  sentence  is  passed  may  order 
the  sentence  to  be  executed  in  any  house  of  correction  or  house  of 
reformation  for  juvenile  dehnquents  within  the  State  or  district 
where  such  court  is  held,  the  use  of  which  is  authorized  by  the 
legislature  of  the  State  for  such  purpose."  ^ 

§  504.   Juvenile  Offenders. 

"  Juvenile  offenders  against  the  laws  of  the  United  States, 
being  under  the  age  of  sixteen  years,  and  who  may  hereafter  be 
convicted  of  crime,  the  punishment  whereof  is  imprisonment, 
shall  be  confined  during  the  term  of  sentence  in  some  house  of 
refuge  to  be  designated  by  the  Attorney-General,  and  shall  be 
transported  and  delivered  to  the  warden  or  keeper  of  such  house 
of  refuge  by  the  marshal  of  the  district  where  such  conviction  has 
occurred ;  or,  if  such  conviction  be  had  in  the  District  of  Columbia, 
then  the  transportation  and  delivery  shall  be  by  the  warden  of  the 
jail  of  that  district,  and  the  reasonable  actual  expense  of  the  trans- 
portation, necessary  subsistence,  and  hire,  and  transportation  of 
assistants  and  the  marshals  or  warden,  only,  shall  be  paid  by  the 
Attorney-General,  out  of  the  judiciary  fund."  ^ 

§  505.  Contracts  for  Subsistence  —  Juvenile  Offenders, 
**  The  Attorney-General  shall  contract  with  the  managers  or 
persons  having  control  of  such  houses  of  refuge  for  the  imprison- 
ment, subsistence  and  proper  employment  of  all  such  juvenile 
offenders,  and  shall  give  the  several  courts  of  the  United  States 
and  of  the  District  of  Columbia  notice  of  the  places  so  provided 
for  the  confinement  of  such  offenders ;  and  they  shall  be  sentenced 
to  confinement  in  the  house  of  refuge  nearest  the  place  of  con- 
viction so  designated  by  the  Attorney-General."  ^ 

§  505  a.  Discretion  of  Attorney-General. 

The  polic}'  of  the  law  as  shown  from  the  numerous  enactments 
of  Congress  is  to  vest  the  Attorney-General  w4th  vast  powers 
over  the  welfare  and  parole  of  Federal  prisoners.     Whether  it  was 

§  503.   1  Act  of  March  3,  1835,  c.  §  505.   i  Act  of  March  3,  1865,  c. 

40,  4  Stat.  L.  777.  121,  13  Stat.  L.  538 ;  Act  of  March  5, 

§  504.   1  Act  of  March  3,  1865,  c.      1872,  c.  30,  17  Stat.  L.  35. 
121,  13  Stat.  L.  538 ;  Act  of  March  5, 
1872,  c.  30,  17  Stat.  L.  35. 

413 


§  505  a]  PAROLE  ACT  [Chap.  XL 

wise  to  place  the  prisoner  into  the  hands  of  the  Chief  Prosecuting 
Attorney  or  whether  it  would  be  better  to  place  the  whole  matter  of 
paroles  and  prison  administration  in  the  hands  of  an  independent 
impartial  board  is  a  question  deserving  great  thought  and  re- 
flection. 

§  506.  Furnishing  Clothing  and  Money  to  Discharged  Pris- 
oners. 

"  That  on  the  discharge  from  any  prison  of  any  person  convicted 
under  the  laws  of  the  United  States,  on  indictment,  he  or  she  shall 
be  provided  by  the  warden  or  keeper  of  said  prison  with  one  plain 
suit  of  clothes  and  five  dollars  in  money,  for  which  charge  shall  be 
made  and  allowed  in  the  accounts  of  said  prison  with  the  United 
States :  Provided,  That  this  section  shall  not  apply  to  persons 
sentenced  for  a  term  of  imprisonment  of  less  than  six  months."  ^ 

§  506.   1  Act  of  March  3,  1875,  c.  145,  §  2,  18  Stat.  L.  480. 


414 


CHAPTER  XLI 

CONTEMPT 

§  507.  Power  to  Punish. 

§  508.  Presence  of  the  Court. 

§  509.  Contempt  under  the  Clayton  Act. 

§  510.  Contempt  of  Interstate  Commerce  Commission. 

§  511.  Contempt  of  Congressional  Committees. 

§  512.  Classification  —  Civil  and  Criminal  Contempt. 

§  513.  Acts  Constituting  Contempt  —  Generally. 

§  514.  Imprisonment  for  Debt. 

§  515.  In  Bankruptcy. 

§  516.  Procedure  —  Complaints  and  Iiiformations. 

§  517.  Procedm-e,  Continued. 

§  518.  Right  to  Jury  Trial. 

§  519.  Change  of  Venue. 

§  520.  Disclaimer  under  Oath. 

§  521.  Nature  and  Degree  of  Punishment. 

§  522.  Degree  of  Proof. 

§523.  Right  to  Review. 

§  507.  Power  to  Punish. 

The  courts  of  the  United  States,  like  all  other  courts,  have  the 
inherent  power  to  punish  for  contempt.^  The  process  of  contempt 
is  a  severe  remedy  and  should  not  be  resorted  to  where  there  is 
fair  ground  of  doubt  as  to  the  wrongfulness  of  the  defendant's 
conduct.^  Section  268  of  the  Federal  Judicial  Code  provides : 
"  The  said  courts  shall  have  power  to  impose  and  administer  all 
necessary  oaths,  and  to  punish,  by  fine  or  imprisonment,  at  the 

§  507.   1  Stuart  v.  Reynolds,   204  205 ;   Ex  parte  Terry,  128  U.  S.  289, 

Fed.  709,  123  C.  C.  A.  13  (5th  Cir.) ;  32  L.  ed.  405,  9  S.  C.  77. 
In  re  Maury,  205  Fed.  626,  123  C.  2  Stuart    v.    Reynolds,    204    Fed. 

C.  A.  642  (9th  Cu-.) ;   United  States  709,    123   C.   C.   A.    13    (5th   Cir.) ; 

V.  Shipp,  203  U.  S.  563,  51  L.  ed.  CaUfornia  Paving  Co.  v.  MoUtor,  113 

319,  27  S.  C.  165;   Ex  parte  Robin-  U.  S.  609,  28  L.  ed.  1106,  5  S.  C. 

son,  19  Wall.  (U.  S.)  505,  22  L.  ed.  618. 

415 


§  507]  CONTEMPT  [Chap.  XLI 

discretion  of  the  court,  contempts  of  their  authority :  Provided, 
That  such  power  to  punish  contempts  shall  not  be  construed  to 
extend  to  any  cases  except  the  misbehavior  of  any  person  in  their 
presence  or  so  near  thereto  as  to  obstruct  the  administration  of 
justice,  the  misbehavior  of  any  of  the  officers  of  said  courts  in  their 
official  transactions,  and  the  disobedience  or  resistance  by  any  such 
ofiicer,  or  by  any  party,  juror,  witness,  or  other  person  to  any 
lawful  writ,  process,  order,  rule,  decree,  or  command  of  the  said 
courts."  The  statute  is  merely  declaratory  of  the  inherent  power 
of  Federal  Courts  to  administer  summarily  punishment  for  con- 
tempt.^ 

§  508.  Presence  of  the  Court. 

In  construing  the  words  "  presence  or  proximity  of  the  Court," 
physical  nearness  to  the  place  where  the  Court  is  in  session  at 
the  actual  commission  of  the  acts  charged  as  a  contempt  is  not 
important,  but,  as  in  the  case  of  constructive  presence  in  criminal 
cases,  the  misbehavior  is  committed  where  it  takes  effect.^  The 
Court,  at  least  when  in  session,  is  present  in  every  part  of  the  place 
set  apart  for  its  own  use  and  for  the  use  of  its  officers,  jurors, 
and  witnesses,  and  misbehavior  anywhere  in  such  place  is  mis- 
behavior in  the  presence  of  the  court.^  In  the  case  of  Toledo 
Newspaper  Co.  v.  United  States,^  Chief  Justice  White  said :  "  The 
test  of  power  is  in  the  character  of  the  acts  in  question  ;  when  their 
direct  tendency  is  to  prevent  or  obstruct  the  discharge  of  judicial 
duty,  they  are  subject  to  be  restrained  through  summary  contempt 
proceedings."  The  United  States  Commissioners  have  not  the 
power  to  punish  for  contempt,  but  must  report  the  misconduct 
to  the  court.'*  Under  Section  157  of  the  Federal  Judicial  Code,  the 
Court  of  Claims  is  granted  power  to  punish  for  contempt  in  the 

3  Toledo  Newspaper  Co.  v.  United  paper  Co.,  247  U.  S.  402,  62  L.  ed. 

States,  247  U.  S.  402,  62  L.  cd.  1186,  1186,  38  S.  C.  560;   Matter  of  Savin, 

38  S.  C.  560.  131  U.  S.  267,  33  L.  ed.  150,  9  S.  C. 

§  508.   » Independent    Publ.    Co.  699. 
t;.    United    States,    240    Fed.    849;  « 247  U.  S.  402,  62  L.  ed.  1186, 

United  States  v.  Huff,  206  Fed.  700 ;  38  S.  C.  560. 

United  States  v.  Toledo  Newspaper  "  In    re    Perkins,    100    Fed.    950 ; 

Co.,  220  Fed.  458,  Affirmed  in  247  U.  United  States  v.  Shipp,  203  U.  S.  563, 

S.  402,  62  L.  cd.  1186,  38  8.  C.  560.  51  L.  ed.  319,  27  S.  C.  164;   United 

^  United  States  v.  Toledo  News-  States  v.  Beavers,  125  Fed.  778. 
416 


Chap.  XLI]         CONTEMPT   UNDER   THE    CLAYTON   ACT  [§  509 

manner  prescribed  by  the  common  law.  In  order  to  punish  per- 
jury in  the  presence  of  the  court  as  a  contempt,  there  must  be 
added  to  the  essential  elements  of  perjury  under  the  general  law 
the  further  element  of  obstruction  to  the  court  in  the  performance 
of  its  duty.^ 

§  509.   Contempt  under  the  Clayton  Act. 

Section  21  of  the  Clayton  Act  provides  :  "  Any  person  who  shall 
willfully  disobey  any  lawful  writ,  process,  order,  rule,  decree  or 
command  of  any  district  court  of  the  United  States  or  any  court 
of  the  District  of  Columbia  by  doing  any  act  or  thing  therein, 
or  thereby  forbidden  to  be  done  by  him,  if  the  act  or  thing  so  done 
by  him  be  of  such  character  as  to  constitute  also  a  criminal  offense 
under  any  statute  of  the  United  States  or  under  the  laws  of  any 
btate  in  which  the  act  was  committed  shall  be  proceeded  against 
for  his  said  contempt  as  hereinafter  provided."  ^  Section  22  of  the 
same  Act  further  provides:  "Whenever  it  shall  be  made  to 
appear  to  any  district  court  or  judge  thereof,  or  to  any  judge 
therein  sitting,  by  the  return  of  a  proper  oflScer  on  lawful  process, 
or  upon  the  affidavit  of  some  credible  person,  or  by  information  filed 
by  any  district  attorney,  that  there  is  reasonable  ground  to  believe 
that  any  person  has  been  guilty  of  such  contempt,  the  court  or 
judge  thereof,  or  any  judge  therein  sitting,  may  issue  a  rule  requir- 
ing the  said  person  so  charged  to  show  cause  upon  a  day  certain 
why  he  should  not  be  punished  therefor,  which  rule,  together 
with  a  copy  of  the  affidavit  or  information,  shall  be  served  upon 
the  person  charged,  with  sufficient  promptness  to  enable  him  to 
prepare  for  and  make  return  to  the  order  at  the  time  fixed  therein. 
If  upon  or  by  such  return,  in  the  judgment  of  the  court,  the  alleged 
contempt  be  not  sufficiently  purged,  a  trial  shall  be  directed  at  a 
time  and  place  fixed  by  the  court :  Provided,  however.  That  if  the 
accused,  being  a  natural  person,  fail  or  refuse  to  make  return  to 
the  rule  to  show  cause,  an  attachment  may  issue  against  his 
person  to  compel  an  answer,  and  in  case  of  his  continued  failure  or 
refusal,  or  if  for  any  reason  it  be  impracticable  to  dispose  of  the 
matter  on  the  return  day,  he  may  be  required  to  give  reasonable 

s  Ex  parte  WUUam  F.  Hudgings,  §  509.   ^  Act  of  Oct.   15,  1914,  c. 

249  U.  S.  378,  —  L.  ed.  ^,  39  S.  C.      323,  §  21,  38  Stat.  L.  738. 
427,  per  Chief  Justice  White. 

VOL.  1  —  27  417 


§  509]  CONTEMPT  [Chap.  XLl 

bail  for  his  attendance  at  the  trial  and  his  submission  to  the 
j&nal  judgment  of  the  court.  Where  the  accused  is  a  body  cor- 
porate, an  attachment  for  the  sequestration  of  its  property  may 
be  issued  upon  like  refusal  or  failure  to  answer.  In  all  cases 
within  the  purview  of  this  Act  such  trial  may  be  by  the  court,  or, 
upon  demand  of  the  accused,  by  a  jury ;  in  which  latter  event 
the  court  may  impanel  a  jury  from  the  jurors  then  in  attendance, 
or  the  court  or  the  judge  thereof  in  chambers  may  cause  a  suffi- 
cient number  of  jurors  to  be  selected  and  summoned,  as  provided 
by  law,  to  attend  at  the  time  and  place  of  trial,  at  which  time 
a  jury  shall  be  selected  and  impaneled  as  upon  a  trial  for  mis- 
demeanor ;  and  such  trial  shall  conform,  as  near  as  may  be,  to  the 
practice  in  criminal  cases  prosecuted  by  indictment  or  upon 
information.  If  the  accused  be  found  guilty,  judgment  shall  be 
entered  accordingly,  prescribing  the  punishment,  either  by  fine  or 
imprisonment,  or  both,  in  the  discretion  of  the  court.  Such  fine 
shall  be  paid  to  the  United  States  or  to  the  complainant  or  other 
party  injured  by  the  act  constituting  the  contempt,  or  may,  where 
more  than  one  is  so  damaged,  be  divided  or  apportioned  among 
them  as  the  court  may  direct,  but  in  no  case  shall  the  fine  to  be 
paid  to  the  United  States  exceed,  in  case  the  accused  is  a  natural 
person,  the  sum  of  $1,000,  nor  shall  such  imprisonment  exceed 
the  term  of  six  months :  Provided,  That  in  any  case  the  court 
or  a  judge  thereof  may,  for  good  cause  shown,  by  afiidavit  or 
proof  taken  in  open  court  or  before  such  judge  and  filed  with  the 
papers  in  the  case,  dispense  with  the  rule  to  show  cause,  and 
may  issue  an  attachment  for  the  arrest  of  the  person  charged  with 
contempt ;  in  which  event  such  person,  when  arrested,  shall  be 
brought  before  such  court  or  a  judge  thereof  without  unnecessary 
delay  and  shall  be  admitted  to  bail  in  a  reasonable  penalty  for  his 
appearance  to  answer  to  the  charge  or  for  trial  for  the  contempt ; 
and  thereafter  the  proceedings  shall  be  the  same  as  provided 
herein  in  case  the  rule  had  issued  in  the  first  instance."  ^ 

§  510.  Contempt  of  Interstate  Commerce  Commission. 
The  Interstate  Commerce  Commission  has  power  to  compel 
the  attendance  of  a  witness  and  a  failure  to  obey  a  subpoena  issued 

'  Act  of  Oct.  15,  1914,  c.  323,  §  22,  38  Stat.  L.  738. 
418 


Chap.  XLI]  CLASSIFICATION  [§  512 

by  the  Commission  constitutes  contempt.^  But  this  power  em- 
braces only  complaints  for  violations  of  the  Interstate  Com- 
merce Act  and  investigations  by  the  Commission  upon  matters 
which  are  properly  the  subject  of  such  complaint.^ 

§  511.   Contempt  of  Congressional  Committees. 

The  Constitution  does  not  expressly  grant  to  Congress  the  right 
to  punish  for  contempt,  except  that  Article  I,  §  5  grants  such 
powers  to  the  House  in  dealing  with  its  own  members.  How- 
ever, in  so  far  as  this  power  is  necessary  for  the  preservation  of 
legislative  authority,  to  that  extent  is  such  power  to  punish  implied 
in  the  grant  of  legislative  authority.  The  punishment  that  Con- 
gress may  impose  is  limited,  therefore,  to  protection  and  pres- 
ervation of  its  legislative  functions.  Imprisonment  for  such 
contempt  cannot  be  extended  beyond  the  session  of  the  legislature 
during  which  it  was  committed.^ 

§  512.   Classification  —  Civil  and  Criminal  Contempt. 

Contempts  are  neither  wholly  civil  nor  altogether  criminal. 
An  act  may  partake  of  the  characteristics  of  both  and  it  may  not 
always  be  easy  to  classify  a  particular  act  as  belonging  to  either 
one  of  these  two  classes.  The  character  and  purpose  of  the  punish- 
ment often  serve  to  distinguish  the  classes  of  cases.  If  it  is  for 
civil  contempt,  the  punishment  is  remedial  and  for  the  benefit 
of  the  complainant.  But,  if  it  is  for  criminal  contempt,  the 
sentence  is  punitive,  to  vindicate  the  authority  of  the  court.^ 
Where  a  proceeding  for  contempt  is  criminal  in  its  nature  it 
partakes  of  the  elements  and  attributes  of  a  criminal  action.  The 
accused  is  presumed  to  be  innocent  until  proven  guilty  .^  Proof  of 
guilt  consistent  with  that  required  in  any  other  criminal  prose- 

§  510.   1  United  States  v.  Skinner,  &  Range  Co.,  221  U.  S.  418,  55  L. 

218  Fed.  870.  ed.  797,  31  S.  C.  492 ;    Bessette  i;. 

-  Harriman  V.  Interstate  Commerce  Conkey  Co.,   194  U.  S.  324,  48  L. 

Commission,  211  U.  S.  407,  53  L.  ed.  ed.  997,  24  S.  C.  665;   In  re  Nevitt, 

253,  29  S.  C.  123.  117  Fed.  448,  54  C.  C.  A.  622  (8th 

§  511.   1  Anderson     v.     Dunn,     6  Cir.) ;    Boyd  v.   United  States,   116 

Wheat.  (U.  S.)  204,  56  L.  ed.  242;  U.  S.  616,  29  L.  ed.  746,  6  S.   C. 

MarshaU  v.  Gordon,  243  U.  S.  543,  524. 

61  L.  ed.  881,  37  S.  C.  448.  ^  jones     v.    United     States,    209 

§  512.   1  Gompers  v.  Buck's  Stove  Fed.  585,  126  C.  C.  A.  407  (7th  Cir.). 

419 


§  512]  CONTEMPT  [Chap.  XLI 

cution  is  requisite  to  a  conviction.^  The  accused  cannot  be 
compelled  to  testify  against  himself.^  The  imposition  of  a  fine 
for  criminal  contempt  is  a  judgment  in  a  criminal  case.^  Con- 
tempts may  be  classified  as  direct  and  indirect,  or  constructive, 
and  as  civil  or  criminal.  That  conduct,  consisting  of  acts  done  or 
words  spoken  in  the  presence  of  the  court,  which  tends  to  obstruct, 
interrupt  or  prevent  justice  is  a  direct  contempt.  A  constructive 
contempt  is  one  arising  from  matters  not  transpiring  in  court, 
yet  subverting  or  obstructing  the  due  administration  of  justice.^ 

§  513.   Acts  Constituting  Contempt  —  Generally. 

A  witness  whose  conduct  shows  beyond  doubt  that  he  is  refusing 
to  tell  what  he  knows,  or  that  his  testimony  is  a  mere  transparent 
sham,  is  guilty  of  contempt,^  and  may  be  punished  for  such 
contempt  distinct  from  the  punishment  for  perjury.^  But  a 
witness  may  properly  refuse  to  answer  a  question  if  such  answer 
tends  to  incriminate  him,^  nor  may  he  be  compelled  to  produce  his 
private  books  and  papers  which  would  incriminate  him  or  result 
in  forfeiture  of  his  property.  Such  procedure  is  abhorrent  to  the 
law  and  contrary  to  the  principles  of  free  government.^  This  pro- 
tection, however,  may  not  be  extended  to  uphold  a  refusal  to 
produce  the  books  of  a  corporation  by  one  of  its  officers,  under 
investigation,  because,  as  against  the  corporation,  their  pro- 
duction might  be  lawfully  compelled,  and  as  to  the  officer  such 
production  is  no  self-incrimination  since  he  is  not  compelled  to 
produce  his  private  books. ^  One  of  several  partners  of  a  firm, 
served  with  a  subpoena  duces  tecum,  calling  for  papers  in  the  posses- 

3  KeUy  V.  United  States,  250  Fed.  §  513.   i  In     re     Schulman,     177 

947,   163  C.  C.  A.   197   (9th  Cir.) ;  Fed.  191,  101  C.  C.  A.  361  (2d  Cir.) ; 

Gates  V.  United  States,  233  Fed.  201,  United   States   v.    Appel,    211    Fed. 

147  C.  C.  A.  207  (4th  Cir.).  495;   Ex.  parte  Hudgings,  249  U.  S. 

*  United  States  v.  Jose,   63  Fed.  378,  —L.  ed.  — ,  39  S.  C.  427. 

951 ;    Boyd  v.  United  States,  116  U.  ^  in  re  Steiner,  195  Fed.  299. 

S.  616,  29  L.  cd.  746,  6  S.  C.  524.  ^  In  re  Shea,  166  Fed.  180. 

^  Creckmore     v.     United     States,  ^  Boyd  v.   United  States,   116  U. 

237  Fed.  743,  150  C.  C.  A.  497  (8th  S.  616,  29  L.  ed.  746,  6  S.  C.  524. 

Cir.) ;   Stuart  v.  Reynolds,  204  Fed.  ^  Wheeler   v.   United   States,   226 

709,  123  C.  C.  A.  13  (5th  Cir.) ;    In  U.  S.  478,  57  L.  ed.  309,  33  S.  C.  158; 

re  Frankel,  184  Fed.  539.  Consolidated  Rendering  Co.  v.  Ver- 

« Indianapolis  Water  Co.  v.  Amer-  mont,  207  U.  S.  541,  52  L.  ed.  327, 

ican  Strawboard  Co.,  75  Fed.  972.  28  S.  C.  178. 
420 


Chap.  XLI]  ACTS    CONSTITUTING    CONTEMPT  [§  513 

sion  of  others  of  the  partners,  must  use  dihgent  efforts  to  obtain 
the  documents  called  for,  and  failure  to  make  such  effort  is  con- 
tempt.^ A  corporation,  like  an  individual,  may  be  guilty  of 
contempt  in  refusing  to  obey  a  subpoena  duces  tecum  which  suffi- 
ciently specifies  the  books  or  papers  required  to  be  produced.^ 
There  has  been  some  question  raised  as  to  whether  the  publication 
of  a  newspaper  article,  which  when  read  in  the  presence  of  the  court, 
is  punishable  as  a  contempt,  it  being  maintained  that,  since  the 
publication  may  be  made  at  a  considerable  distance  from  the  court- 
room, it  would  not  come  within  the  provision  of  the  Federal  statute. 
As  pointed  out,  however,  the  crime  is  committed  where  it  takes 
effect  and  publications  which  reflect  upon  the  court,  counsel, 
parties,  or  witnesses,  respecting  the  cause  and  which  tend  to  ob- 
struct the  administration  of  justice,  constitute  contempt.^  A 
newspaper  or  magazine  publication  reflecting  upon  the  presiding 
judge  is  contemptuous  when  its  tendency  is  to  interfere  with 
the  administration  of  justice  in  a  pending  cause,^  and  the  constitu- 
tional right  of  the  freedom  of  the  press  is  not  violated  by  the  in- 
fliction of  a  punishment  for  contempt  in  connection  with  a  con- 
temptuous publication.^"  Newspaper  comment  on  the  testimony 
and  giving  names  of  witnesses  before  a  Federal  grand  jury,  obtained 
by  observing  those  entering  the  grand  jury  room,  hindered  the 
secrecy  of  the  affairs  of  the  grand  jury  and  was  punishable  as  a 
contempt.^^  A  newspaper  which  published  articles  concerning 
the  defendant's  character,  which  was  read  by  the  jury  and  neces- 
sitated its  discharge,  was  held  guilty  of  contempt,  and  that  the 

6  In  re  Munroe,  210  Fed.  326.  205  U.  S.  454,  51  L.  ed.  879,  27  S. 

^  Heller  v.  Ilwaco  Mill  &  Lumber  C.  556 ;    In  re  Independent  PubUsh- 

Co.,  178  Fed.  111.  ing  Co.,  240  Fed.  849,  153  C.  C.  A. 

8  Patterson  v.  Colorado,  205  U.  S.  535  (9th  Cir.) ;  United  States  v. 
454,  51  L.  ed.  879,  27  S.  C.  556;  Providence  Tribune  Co.,  241  Fed. 
United  States  v.  Toledo  Newspaper  524;  Gorham  Mfg.  Co.  v.  Emery- 
Co.,  247  U.  S.  402,  62  L.  ed.  1186,  Bird-Thayer  Dry-Goods  Co.,  92 
38  S.  C.  560 ;  Independent  Publishing  Fed.  774. 

Co.  V.  United  States,  240  Fed.  849,  >»  United  States  v.  Toledo  News- 

153  C.  C.  A.  535  (9th  Cir.) ;   United  paper  Co.,  247  U.  S.  402,  62  L.  ed. 

States  v.  Providence  Tribune  Co.,  241  1186,    38   S.    C.   560;     Independent 

Fed.  524.  PubUshing  Co.  v.  United  States,  240 

» Toledo  Newspaper  Co.  v.  United  Fed.  849. 
States,  247  U.  S.  402,  62  Lr.  ed.  1186,  "  United    States    v.     Providence 

38  S.  C.  560;   Patterson  v.  Colorado,  Tribune  Co.,  241  Fed.  524. 

421 


§  513]  CONTEMPT  [Chap.  XLI 

statements  published  were  true  constituted  no  valid  defense.^ 
In  proceedings  for  contempt  to  punish  a  newspaper  for  the  publi- 
cation of  articles  intending  to  bear  pressure  upon  a  judge  to  make 
him  decide  pending  litigation  a  particular  way,  it  is  immaterial 
whether  the  article  came  to  the  attention  of  such  judge  or  whether 
it  did,  in  fact,  influence  his  opinion.^^  Any  words  uttered  by 
speech,  by  writing,  or  by  printing  outside  of  the  regular  course 
of  litigation,  which  are  designed  to  bring  contempt  upon  the  courts 
in  the  exercise  of  their  judicial  functions,  or  to  pervert  in  a  pending 
case  the  administration  of  justice,  constitute  contempt.^^  A 
marshal  who  subpoenas  a  talesman  known  to  him  to  be  friendly  to 
the  defendant  is  not  thereby  guilty  of  contempt.^^  An  unprovoked 
assault  on  plaintiff's  attorney,  in  full  view  of  the  jury  room,  and 
while  the  jury  were  deliberating,  was  held  to  be  contempt.^^  One. 
who  communicates  with  a  juror  pending  a  trial,  or  has  such  rela- 
tions with  a  juror  as  may  tend  improperly  to  influence  the  action 
of  such  juror,  is  punishable  for  contempt  although  it  cannot  be 
proved  that  such  acts  were  committed  with  unlawful  intent.^''  An 
attempt  to  influence  prospective  jurors,  made  several  city  blocks 
away  from  the  courthouse,  was  held  to  be  an  interference  with  the 
due  administration  of  justice  within  the  contemplation  of  Federal 
statutes.^^  A  grand  juror  is  not  guilty  of  contempt  when  he  dis- 
closes the  testimony  or  other  proceedings  of  the  jury  after  it  has 
been  discharged,  since,  obviously,  such  conduct  cannot  obstruct 
the  administration  of  justice.^^  It  is  contempt  of  court  to  inter- 
fere with  property  in  custodia  legis?^  Language  or  conduct  in- 
tended to  incite  others  to  a  violation  of  the  court's  order  is  a  con- 
tempt of  court.^^     But  the  defendants  are  not  guilty  of  contempt 

12  Independent  Publishing  Co.   v.  S.  246,  51  L.  ed.  1047,  27  S.  C.  600; 

United  States,  240  Fed.  849.  Kelly  v.  United  States,  250  Fed.  947, 

"  United  States  v.  Toledo  News-  163  C.  C.  A.  197  (9th  Cir.). 
paper  Co.,  247  U.  S.  402,  62  L.  ed.  ^^  Kirk  v.  United  States,  192  Fed. 

1186,  38  S.  C.  560.  273,  112  C.  C.  A.  531  (9th  Cir.). 

"In  re  Chesseman,  49  N.  J.  L.  ^^  Atwell    v.    United    States,    162 

115,  6  Atl.  517.  Fed.  97,  89  C.  C.  A.  97  (4th  Cir.). 

"Richards  v.  United  States,  126  ''"Clay  v.  Waters,   178  Fed.  385, 

Fed.  105,  61  C.  C.  A.  161  (9th  Cir.).  101  C.  C.  A.  645  (8th  Cir.). 

"  United   States   v.   Barrett,    187  ^i  XJnited  States  v.  Debs,  64  Fed. 

Fed.  378.  724 ;    In  re  Debs,  158  U.  S.  564,  39 

"  Ellis  V.  United  States,  206  U.  L.  ed.  1092,  15  S.  C.  900 ;    United 
422 


Chap,  XLI]  imprisonment  for  debt  [§  514 

for  having  conspired  to  commit  a  contempt.^^  Where  a  deposition 
was  taken  and  pubHshed  in  furtherance  of  a  conspiracy  to  impose 
upon  the  Federal  Court  in  another  State,  it  was  held  that  such  an 
act  did  not  come  within  the  clause  empowering  punishment  for 
misbehavior  "  so  near  the  presence  of  the  court  as  to  obstruct  the 
administration  of  justice ",  unless  the  deposition  was  actually 
offered  or  used  as  evidence.^^  The  filing  of  a  suit  in  a  State  Court 
to  enjoin  an  order  of  a  Federal  Court  is  not  contempt,^^  nor  is  the 
filing  of  a  new  suit  after  supersedeas  from  the  United  States 
Supreme  Court  covering  the  same  subject  matter  contempt  of 
court.^''  To  constitute  contempt,  violation  of  a  lawful  writ,  pro- 
cess, order,  rule,  decree,  or  command  of  the  court,  by  one  not  a 
party  to  the  proceeding,  such  violation  must  have  been  after 
actual  knowledge  of  the  order  or  other  command.^''  Disobedience  of 
an  order  void  for  want  of  jurisdiction  is  not  contempt.^^  A  person 
cited  for  contempt  may  be  excused  for  failure  to  comply  with  an 
order  for  the  payment  of  money,  on  showing  his  inability  to 
comply  therewith.^^ 

§  514.   Imprisonment  for  Debt. 

Where  the  prisoner  has  the  power  to  comply  with  the  order, 
having  the  money  or  thing  in  question  in  his  possession,  he  may 
be  punished  for  his  failure  to  obey  an  order  commanding  him  to 
surrender  it  without  involving  any  rule  of  law  against  imprison- 

States  V.   Haggarty,   116  Fed.   510;  ""^In    re    Wilk,    155    Fed.    943; 

United  States  «-.  Gehr,  116  Fed.  520;  Toledo,  A.  A.  &  N.  M.  Ry.  Co.  v. 

Stewart  v.   United  States,  236  Fed.  Pennsylvania     Co.,     54     Fed.     746 ; 

838,  150  C.  C.  A.  100  (8th  Cir.).  Garrigan  v.  United  States,  163  Fed. 

22  Doniphan  v.  Lehman,  179  Fed.  16,  89  C.  C.  A.  491  (7th  Cir.) ;  Fetti- 
173.  bone  v.  United  States,  148  U.  S.  197, 

23  Doniphan  v.  Lehman,  179  Fed.  37  L.  ed.  419,  13  S.  C.  542. 

173.  27gtuart    v.    Reynolds,    204    Fed. 

2^  Royal  Trust  Co.  v.  Washburn  709,    123   C.   C.   A.    13    (5th   Cir.); 

R.  R.  Co.,  139  Fed.  865,  71  C.  C.  A.  In  re  Ayers,  123  U.  S.  443,  31  L.  ed. 

679  (7th  Cir.).  216,  8  S.  C.  164;    In  re  Sawyer,  124 

26  Natal    V.    State    of    Louisiana,  U.  S.  200,  31  L.  ed.  402,  8  S.  C.  482 ; 

123  U.  S.  516,  31  L.  ed.  233,  8  S.  C.  Ex  parte  Fisk,  113  U.  S.  713,  28  L. 

253.     -See  aisolGuaranty  Trust  Co.  ed.  1117,  5  S.  C.  724. 
of  New  York  v.  North  Chicago  St.  23 1^  rg  Sobol,  242  Fed.  487,  155 

R.  R.  Co.,  130  Fed.  801,^65  C.  C.  A.  C.  C.  A.  263  (2d  Cir.). 
65  (7th  Cir.). 

423 


§  514]  CONTEMPT  [Chap.  XLl 

ment  for  debt.^  However,  if  despite  the  bankrupt's  inability, 
the  court  forces  him  to  pay  such  money  into  court  or  to  his  creditors 
under  the  guise  of  punishing  the  bankrupt  for  contempt,  it  has 
been  held  that  such  action  is  a  violation  of  the  constitutional  pro- 
visions against  imprisonment  for  debt.^ 

§  515.   In  Bankruptcy. 

Section  2  (13)  Bankruptcy  Act  gives  bankruptcy  courts  powers 
"  to  enforce  obedience  by  bankrupts,  officers  and  other  persons, 
to  all  lawful  orders,  by  fine  or  imprisonment,  or  fine  and  im- 
prisonment." Section  2  (16)  authorizes  the  court  to  "  punish 
persons  for  contempts  committed  before  referees  " ;  Section  41  a 
defines  contempts  before  referees  and  Section  41  b  prescribes  the 
procedure  for  summary  hearing  and  punishment  by  the  judge. 
A  bankrupt  who  fails  to  obey  an  order  of  the  bankruptcy  court  to 
pay  over  to  his  trustee  money  found  to  be  in  his  possession  and 
control,  and  property  belonging  to  his  estate,  may  be  committed 
for  contempt  until  he  complies.^  But  the  court  should  be  satisfied 
by  the  evidence  beyond  a  reasonable  doubt  of  the  ability  of  the 
bankrupt  to  comply  with  the  order  to  turn  over  money  or  property 
to  his  trustee  before  exercising  the  power  to  imprison  for  cotitempt.^ 

§  516.   Procedure  —  Complaints  and  Informations. 

The  United  States  Circuit  Court  of  Appeals  for  the  Eighth 
Circuit  held  that  an  information  charging  the  respondents  with  a 
criminal  contempt  may  be  filed  by  the  District  Attorney  on  in- 
formation and  belief.  The  theory  adopted  by  the  court  for  this 
decision  is  that  a  criminal  contempt  is  not  one  of  the  cases  falling 
within  the  Fifth  or  Sixth  Amendment  to  the  Constitution  of  the 
United  States.^     This  same  ruling  was  made  in  another  case.^    It 

§514.   1  Mueller   v.   Nugent,    184  ^  Boyd  v.  Glucklich,  116  Fed.  131, 

U.  S.  1,  46  L.  cd.  405,  22  S.  C.  269.  53  C.  C.  A.  451   (8th  Cir.) ;    In  re 

2  Walton  V.  Walton,  54  N.  J.  E.  Davison,  143  Fed.  673. 

607,   35  Atl.   289 ;    American  Trust  §  516.    ^  Creckmore      v.      United 

Company   v.   Wallis,    126   Fed.   464,  States,  237  Fed.  743,   150  C.  C.  A. 

61  C.  C.  A.  342  (3d  Cir.).  497  (8th  Cir.).     See  also  Merchants' 

§  515.    1  In   re   Purvinc,    96   Fed.  Stock  and  Grain  Company  v.  Board 

192,    37   C.    C.    A.    446    (5th    Cir.) ;  of  Trade,  201  Fed.  20,  120  C.  C.  A. 

Ripon  Knitting  Works  v.  Schreibcr,  582  (8th  Cir.). 

101  Fed.  810;   In  re  Denell,  100  Fed.  ^  Kelly  v.  United  States,  250  Fed. 

633.  947,  163  C.  C.  A.  947  (9th  Cir.). 
424 


Chap.  XLI]  PROCEDURE  [§  517 

was  further  held  that  the  Fifth  Amendment  to  the  Constitution  of 
the  United  States,  providing  that  no  person  shall  be  compelled 
in  any  criminal  case  to  be  a  witness  against  himself,  does  not  apply- 
to  proceedings  instituted  against  the  accused  for  contempt  of 
court  where  the  contempt  charge  does  not  constitute  a  crime.' 
Judge  Hook,  who  sat  in  the  Merchants'  Stock  and  Grain  Co.  case, 
supra,  dissented  from  the  view  taken  by  the  majority  that  a  defend- 
ant in  a  charge  of  criminal  contempt  may  be  compelled  to  testify 
and  incriminate  himself,  and  in  this  he  is  borne  out  at  least  ar- 
guendo by  the  decision  of  the  United  States  Supreme  Court.^ 
The  statutes  provide  that  "  All  crimes  and  offenses  committed 
against  the  provisions  of  chapter  seven.  Title  '  Crimes  ',  which  are 
not  infamous,  may  be  prosecuted  either  by  indictment  or  by  in- 
formation filed  by  a  district  attorney."  ^ 

§  517.  Procedure,  Continued. 

The  proceedings  to  punish  may  be  brought  by  warrant  of  attach- 
ment or  by  rule  to  show  cause,  the  method  being  discretionary 
with  the  court.^  Proceedings  in  criminal  contempt  should  have  a 
separate  title,  inasmuch  as  it  is  a  distinct  proceeding  from  the 
main  cause .^  Process  of  arrest  for  contempt,  not  committed 
in  the  court's  presence,  cannot  properly  issue,  except  upon  the 
filing  of  an  affidavit  or  information  stating  positively  the  facts, 
and  in  such  a  way  as  to  show  prima  facie  the  commission  of  a 
contempt.^  The  accused  must  be  clearly  informed  of  the  charges 
against  him,  and  whether  a  criminal  or  civil  contempt  is  alleged, 
to  enable  defendant  to  prepare  his  defense  properly.^  A  prelimi- 
nary affidavit  is  not  insufficient  because  made  on  information 
and  belief.'^ 

'  Merchants'  Stock  and  Grain  Co.  Tin   Plate   Co.   v.   Amalgamated   A. 

V.  Board  of  Trade,  201  Fed.  20,  120  of  I.  S.  &  T.  W.,  208  Fed.  335. 
C.  C.  A.  582  (8th  Cir.).  ^Ex  parte  Strieker,  109  Fed.  145. 

*  Gompers  v.  Buck's  Stove  &  Range  *  Gompers  v.  Buck's  Stove  Range 

Co.,  221  U.  S.  418,  55  L.  ed.  797,  31  Co.,  221  U.  S.  418,  55  L.  ed.  797,  31 

S.  C.  492.  S.  C.  492 ;    Aaron  v.   United  States, 

6  Revised  Statute  §  1022.  155  Fed.  833,  84  C.  C.   A.  67   (8th 

§517.   iln  re  Steiner,    195  Fed.  Cir.). 
299.  5  Creekmore  v.  United  States,  237 

2S.    Anargyros    v.    Anargyros    &  Fed.    743,    150   C.   C.   A.   497    (8th 

Co.,  191  Fed.  208;   Phillips  Sheet  &  Cir.). 

425 


§  518]  CONTEMPT  [Chap.  XLI 

§  518.  Right  to  Jury  Trial. 

It  has  been  uniformly  held  that  a  defendant  charged  with  con- 
tempt is  not  entitled  to  a  trial  by  jury.^ 

§  519.   Change  of  Venue. 

A  defendant  charged  with  contempt  is  not  entitled  to  a  change 
of  judge  or  venue.^  An  examination  of  the  opinion  of  the  Court 
cited  in  note  shows  that  this  point  was  decided  on  general  prin- 
ciples and  without  regard  to  Section  21  of  the  Federal  Judicial 
Code.  The  observations  made  in  Chapter  XXI  of  this  book,  on 
the  subject  of  change  of  venue,  generally,  are  applicable  also  to 
contempt  proceedings. 

§  520.  Disclaimer  under  Oath. 

Disclaimer  under  oath  of  intention  to  be  disrespectful  or  to 
commit  contempt  was  at  common  law  sufficient  to  purge  the  ac- 
cused of  the  contempt.  The  Federal  Courts,  however,  declare 
it  to  be  within  the  discretion  of  the  court  whether  under  all  the 
circumstances  of  each  case  such  disclaimer  should  be  accepted 
as  a  good  defense.^  Consequently,  although  it  be  shown  that  the 
alleged  contempt  was  willfully  committed,  such  denial  under  oath 
will  not  purge  the  accused.^  A  person  may  be  committed  for  a 
contempt  notwithstanding  the  act  complained  of  may  also  con- 
stitute a  crime  and  be  punishable  as  such.^  The  procedure  in 
such  a  case  is  defined  by  Section  1245  Compiled  Statutes. 

§  521.  Nature  and  Degree  of  Punishment. 

If  the  contempt  is  civil  in  its  nature,  the  punishment  is  remedial 
for  the  benefit  of  the  complainant,  but  if  it  is  for  criminal  con- 

§  518.   1  Eilenbecker     v.     District  §  519.     i  Merchants'    Stock     and 

Court  of  Plymouth  County,  134  U.  Grain  Co.   v.   Board  of  Trade,   201 

S.  31,  33  L.  ed.  801,  10  S.  C.  424;  Fed.  20,  120  C.  C.  A.  582  (8th  Cir.), 

Interstate     Commerce     Commission  but  see  §  509,  supra,  granting  trial 

V.  Brimson,  154  U.  S.  447,  38  L.  ed.  by  jury  in  certain  cases. 

1047,   14  S.  C.   1125;    In  re  Debs,  §520.   »  United    States    v.    Huff, 

158  U.  S.  564,  39  L.  ed.  1092,  15  S.  206  Fed.  700. 

C.  900 ;   Merchants'  Stock  and  Grain  ^  Qates  v.  United  States,  233  Fed. 

Co.  V.  Board  of  Trade  of  Chicago,  201,  147  C.  C.  A.  207  (4th  Cir.). 

201   Fed.  25;    Ex  parte  TilHnghast,  s  Merchants'     Stock     and     Grain 

4  Peters  (U.  S.),  108,  7  L.  ed.  798.  Co.    v.    Board  of  Trade,  201  Fed.  20, 

120  C.  C.  A.  582  (8th  Cir.). 

426 


Chap.  XLI]  RIGHT  TO  REVIEW  [§  523 

tempt  the  sentence  is  punitive  to  vindicate  the  authority  of  the 
court.^  Federal  statutes  declaring  that  courts  may  punish  for 
contempt  by  fine  or  imprisonment  are  a  limitation  upon  the  manner 
in  which  the  power  may  be  exercised  and  are  a  negation  of  all 
other  modes  of  punishment.^  Under  the  Federal  statutes  imposing 
imprisonment  as  punishment  for  contempt,  the  length  of  the  term 
and  place  of  confinement  or  the  fine  imposed  is  within  the  dis- 
cretion of  the  court  .^  A  sentence  for  one  year  and  a  day  in  the 
penitentiary  was  sustained.'^ 

§  522.  Degree  of  Proof. 

It  is  a  well-established  principle  that  in  a  case  of  criminal  con- 
tempt the  trial  court  must  be  convinced  of  the  guilt  of  the  accused 
beyond  a  reasonable  doubt,  and  evidence  showing  guilt  resulting 
in  a  finding  of  such  facts  cannot  be  reviewed  by  an  Appellate 
Court,  whose  inquiry  is  limited  to  the  question  whether  there  was 
any  evidence  upon  which  to  predicate  the  finding.^ 

§  523.  Right  to  Review. 

Contempt  judgments  are  reviewable  only  in  the  United  States 
Circuit  Court  of  Appeal  on  a  writ  of  error. 

The  Supreme  Court  has  no  power  to  review  judgment  for  crim- 
inal contempt  either  by  writ  of  error  or  appeal,^  the  sole  remedy 
being  by  petition  for  certiorari.^    In  a  proper  case  the  Supreme 

§  521.   1  Gompers  v.  Buck's  Stove  §  523.   i  Hayes    v.    Fischer,     102 

Range  Co.,  221  U.  S.  441,  55  L.  ed.  U.  S.  121,  26  L.  ed.  45;   In  re  Debs, 

797,  31  S.  C.  492.  158  U.  S.   564,  573,  39  L.  ed.   1092, 

2  Ex    parte    Robinson,    19    Wall.  15  S.  C.  900;  O'Neil  v.  United  States, 

(U.  S.)  505,  22  L.  ed.  205.  190  U.  S.  36,  47  L.  ed.  945,  23  S.  C. 

^  Creekmore    v.     United     States,  776 ;    Ex  parte  Kearney,  7  Wheat. 

237  Fed.  743,  150  C.  C.  A.  497  (8th  (U.  S.)  38,  5  L.  ed.  391 ;    City  of 

Cir.) ;    In  re   Independent   Publish-  New    Orleans    v.    New    York    Mail 

ing  Co.,  240  Fed.  849,  153  C.  C.  A.  Steamship    Co.,    20    WaU.    (U.    S.) 

535  (9th  Cir.).  387,    22    L.    ed.    354;     Gompers   v. 

*  Creekmore     v.     United     States,  United  States,  233  U.  S.  604,  58  L. 

237  Fed.  743,  150  C.  C.  A.  497  (8th  ed.  1115,  34  S.  C.  693;  Toledo  News- 

Cir.).  paper  Co.  v.  United  States,  247  U. 

§522.   1  Schwartz       v.       United  S.  402,   62  L.   ed.   1186,   38    S.    C. 

States,  217  Fed.  866,  133  C.  C.  A.  560. 

576  (4th  Cir.) ;    Bessette  v.  Conkey  ^  Toledo  Newspaper  Co.  v.  United 

Co.,  194  U.  S.  324,  48  L.  ed.  997,  24  States,  supra. 
S.  C.  665. 

427 


§523] 


CONTEMPT 


[Chap.  XLl 


Court  will  Issue  certiorari  in  aid  of  habeas  corpus  proceedings  and 
writs  of  prohibition,  by  which  the  facts  in  the  contempt  case 
may  be  brought  before  the  court  and  the  merits  of  the  decision  in 
the  lower  court  passed  upon.^  Judgments  and  orders  finding  a 
party  to  be  in  contempt  of  court,  although  made  in  the  course 
of  civil  proceedings,  are  reviewable  in  the  United  States  Circuit 
Court  of  Appeals  solely  by  writ  of  error  if  the  object  of  the  order 
is  punitive  and  criminal  in  character.^  But  in  view  of  the  un- 
certainty in  classifying  the  contempt  charge,  a  writ  of  error  will 
sometimes  be  treated  as  a  petition  to  revise  to  avoid  injustice.^ 
Only  the  party  convicted  of  contempt  can  sue  out  the  writ  of 
error, ^  and  the  fact  that  a  party  is  in  contempt  of  court  does 
not  deprive  him  of  his  right  to  seek  a  review  from  the  judgment 
of  conviction.^  A  judgment  in  criminal  contempt  committed 
in  the  course  of  a  bankruptcy  proceeding  is  reviewable  by  writ 
of  error.^  An  order  imposing  a  fine  on  an  attorney  for  failure  to 
answer  questions  before  a  grand  jury  is  reviewable  only  by  writ 
of  error.^  Contempt  orders  which  are  purely  remedial  as  between 
the  parties  to  the  suit  remain  interlocutory  and  are  not  reviewable, 
except  on  appeal  from  the  final  decree.^" 


3  Bessette  v.  Conkey  Co.,  194 
U.  S.  324,  334,  48  L.  ed.  997,  24 
S.  C.  665;  In  re  Watts  &  Sachs, 
190  U.  S.  1,  47  L.  ed.  933,  23  S.  C. 
718;  Toledo  Newspaper  Co.  v. 
United  States,  247  U.  S.  402,  62  L. 
ed.  1186,  38  S.  C.  560. 

*  Re  Merchants'  Stock  and  Grain 
Co.,  223  U.  S.  639,  642,  56  L.  ed.  584, 
32  S.  C.  339;  Gompers  v.  Buck's 
Stove  Range  Co.,  221  U.  S.  418,  55  L. 
ed.  797,  31  S.  C.  492. 

^  Freed  v.  Central  Trust  Company 
of  Illinois,  215  Fed.  873,  132  C.  C.  A. 
7  (7th  Cir.); 

8  Grant  i;.  United  States,  227  U. 
S.  74,  57  L.  cd.  423,  33  S.  C.  190; 
Bayard  v.  Lombard,  9  How.  530,  551, 


13  L.  ed.  425;  Payne  v.  Niles,  20 
How.  (U.  S.)  219,  15  L.  ed.  895. 

''  Brigham  City  v.  Toltec  Ranch 
Co.,  101  Fed.  85,  41  C.  C.  A.  222 
(8th  Cir.);  Montgomery  L.  &  W. 
P.  Co.  V.  Montgomery  Traction 
Co.,  219  Fed.  963. 

^  Freed  v.  Central  Trust  Company 
of  Illinois,  215  Fed.  873,  132  C.  C.  A. 
7  (7th  Cir.). 

'Grant  v.  United  States,  227  U. 
S.  74,  57  L.  ed.  423,  33  S.  C.  190. 

"  Hultberg  v.  Anderson,  214  Fed. 
349,  131  C.  C.  A.  125  (7th  Cir.); 
Bessette  v.  Conkey  Co.,  194  U.  S.  324, 
48  L.  ed.  997,  24  S.  C.  665  ;  In  re  Mer- 
chants' Stock  and  Grain  Co.,  223  U. 
S.  639,  56  L.  ed.  584,  32  S.  C.  339. 


428 


CHAPTER  XLII 

HABEAS  CORPUS 

§  524.  Introductory  —  Nature  of  Remedy. 

§  525.  Power  of  Courts  to  Issue  Writs. 

§  526.  Courts  Which  May  Issue  Writ. 

§  527.  In  Custody. 

§  528.  Confined  to  Jixrisdictional  Questions. 

§  529.  Regular  Procediu-e  Should  Be  Followed. 

§  530.  Sufficiency  of  Indictment,  etc. 

§531.  Excessive  Sentence. 

§  532.  Special  Uses  of  Writ. 

§  533.  Extradition  Proceedings  under  Treaty. 

§  534.  Interstate  Extradition. 

§  535.  With  Certiorari. 

§  536.  Contempt. 

§  537.  Deportation  Proceedings. 

§  538.  Military  Authorities. 

§  539.  Power  of  Judges  to  Grant  Writs. 

§  540.  Territorial  Jurisdiction. 

§  541.  When  Prisoner  Is  in  Jail. 

§  542.  Scope  of  Jurisdiction. 

§  543.  "In  Pursuance  of  Law." 

§  544.  Pursuant  to  Order,  Process  or  Decree. 

§  545.  From  State  Courts. 

§  546.  Citizens  of  Foreign  States. 

§  547.  For  Testimonial  Purposes. 

§  548.  Application  for  Writ  —  Notice  Required  in  Cases  Involving  Law  of 

Nations. 

§  549.  ^Vho  May  Petition  and  Requisites  of  Petition  for  Writ. 

§  550.  Award  of  Writ. 

§  551.  Proceedings  on  Allowance  or  Denial  of  Writ. 

§  552.  Time  for  Making  Return. 

§  553.  Reasonable  Time  for  Return. 

§  554.  Form  of  Returns. 

§555.  Retiu-n  to  Writ." 

429 


§  524]  HABEAS  CORPUS  [Chap.  XLII 

§  556.  Production  of  Body. 

§  557.  Production  of  Body,  Continued. 

§  558.  Time  for  Hearing. 

§  559.  Promptness  of  Action. 

§  560.  Traverse  of  Return. 

§  561.  Scope  of  Traverse. 

§  562.  Summary  Hearing  and  Disposal. 

§  563.  Procedure  Generally. 

§  564.  Disposal  of  Party. 

§  565.  Law  of  Nations ;  Notice  to  State  Attorney-General. 

§  566.  Pending  Appeal. 

§  567.  Effect  of  Pending  Appeal. 

§  524.   Introductory  —  Nature  of  Remedy. 

Habeas  corpus  is  the  remedy  given  by  the  law  for  the  enforce- 
ment of  the  civil  right  of  personal  liberty/  and  is  the  usual  remedy 
for  unlawful  imprisonment.^  "  The  great  writ  of  habeas  corpus," 
says  Chief  Justice  Chase,  "  has  been  for  centuries  esteemed  the 
best  and  only  defense  of  personal  freedom."  After  a  long  struggle 
it  was  guaranteed  in  England  by  the  famous  Habeas  Corpus  Act 
of  May  27th,  1679.  The  colonists  brought  it  to  America  with 
them  and  claimed  it  as  "  an  immemorial  right  descended  to  them 
from  their  ancestors",  ^  and  when  the  confederated  colonies  became 
the  United  States  this  great  writ  found  prominent  sanction  in 
the  Constitution.  —  "  The  privilege  of  the  writ  of  habeas  corpus 
shall  not  be  suspended,  unless  when  in  cases  of  rebellion  or  in- 
vasion, the  public  safety  may  require  it."  '*  The  judicial  action, 
necessarily  implied  in  the  terms  of  this  provision,  was  author- 
ized and  provided  for  by  the  act  of  September  24,  1789,  which 
reads,  "  All  the  before  mentioned  courts  (District,  Circuit  and 
Supreme)  of  the  United  States  shall  have  power  to  issue  writs 
of  scire  facias,  habeas  corpus,  and  all  other  writs  not  specially 
provided  by  statute,  which  may  be  necessary  for  the  exercise  of 
their  respective  jurisdictions,  and  agreeable  to  the  principles 
and  usages  of  law."  ^ 

§  524.   1  Ex  parte  Tom  Tong,  108  ^  Ex  parte  Yerger,  8  Wall.  (U.  S.) 

U.  S.  556,  27  L.  ed.  826,  2  S.  C.  871.  85,  95,  19  L.  ed.  332. 

2  Chin  Yow  v.  United  States,  208  ^  United  States  Constitution,  Arti- 

U.  S.  8,  52  L.  ed.  369,  28  S.  C.  201 ;  cle  1,  Section  9. 
Ex  parte  Tinkoff,  254  Fed.  222.  ^  i  Statute  at  L.  81,  §  14. 

430 


Chap.  XLII]  IN  CUSTODY  [§  527 

§  525.  Power  of  Courts  to  Issue  Writs. 

Revised  Statute  §  751  provides :  "  The  Supreme  Court  and 
the  circuit  and  district  courts  shall  have  power  to  issue  writs  of 
habeas  corpus."  ^ 

§  526.   Courts  Which  May  Issue  Writ. 

The  Supreme  Court  can  only  be  asked  to  issue  a  writ  of  habeas 
corpus  within  its  original  jurisdiction  when  the  inferior  court  has 
acted  without  jurisdiction  or  exceeded  its  powers  to  the  prejudice 
of  the  party  seeking  the  writ.^  Courts  of  Appeal  are  not  authorized 
to  issue  original  and  independent  writs  of  habeas  corpus.^  The 
District  Courts  have  by  express  provision  jurisdiction  to  issue 
the  writ,  their  duty  to  grant  or  refuse  it  depending  on  the  facts 
of  each  case.^ 

§  527.  In  Custody. 

The  court  will  not  proceed  to  adjudication  where  there  is  no 
subject  matter  on  which  the  judgment  can  operate ;  therefore 
leave  to  file  a  petition  for  habeas  corpus  will  be  denied  where  it  is 
obvious  that  before  a  return  to  the  writ  can  be  made,  or  any  other 
action  taken,  the  prisoner  will  be  out  of  custody.^  Something 
more  than  moral  restraint  is  necessary  to  make  a  case  for  habeas 
corpus.  There  must  be  actual  confinement  or  the  present  means 
of  enforcing  it.  While  the  Acts  of  Congress  concerning  this  writ 
are  not  decisive,  perhaps,  as  to  what  is  a  restraint  of  liberty, 
they  are  evidently  framed  in  their  provisions  for  proceedings  in 
such  cases  on  the  idea  of  the  existence  of  some  actual  restraint.^  A 
prisoner  out  on  bail  is  not  restrained  of  liberty  so  as  to  be  entitled 
to  discharge  on   habeas  corpus.^    When  a  person  under  arrest 

§  525.   '  Circuit  Courts  were  abol-  » piier  v.  Steele,  228  Fed.  242.     See 

ished  by  the  Judicial  Code,  March  also  §539,  infra. 

3,    1911,    ch.    13,    §§  289-291,    and  §  527.    ^  In    re    Lincoln,    202    U. 

their  powers  and  duties  were  conferred  S.  178,  50  L.  ed.  984,  26  S.  C.  602; 

on  the  District  Courts.  Ex  parte  Baez,  177  U.  S.  378,  44  L. 

§  526.   1  In   re   Lane,    135   U.   S.  ed.  813,  20  S.  C.  673. 

443,   34  L.  ed.  219,   10  S.  C.  760;  2  Wales   v.    Whitney,    114   U.    S. 

Ex  parte  Terry,   128  U.  S.  289,  32  564,  29  L.  ed.  277,  5  S.  C.  1050. 

L.  ed.  405,  9  S.  C.  77.  ^  Sibray    v.    United    States,    185 

2  Whitney  v.  Dick,  202  U.  S.  132,  Fed.  401,  107  C.  C.  A.  483  (3d  Cir.). 
137,  50  L.  ed.  963,  26  S^.  C.  584. 

431 


§  527]  HABEAS  CORPUS  [Chap,  XLII 

applies  for  discharge  on  a  writ  of  habeas  corpus,  the  issue  presented 
is  whether  he  is  unlawfully  restrained  of  his  liberty.  But  there 
is  no  unlawful  restraint  where  he  is  held  under  a  valid  order  of 
commitment  so  that  in  strict  logic  the  inquiry  might  extend  to 
the  legal  sufficiency  of  the  order.  In  view,  however,  of  the  nature 
of  the  writ,  and  the  character  of  the  detention  under  a  warrant, 
no  hard  and  fast  rule  has  been  announced  as  to  how  far  the  court 
will  go  in  passing  upon  questions  raised  by  habeas  corpus  pro- 
ceedings.'* 

§  528.   Confined  to  Jurisdictional  Questions. 

In  habeas  corpus  proceedings,  the  court  is  confined  largely  to 
the  examination  of  fundamental  and  jurisdictional  questions.^ 
If  an  inferior  court  or  magistrate  of  the  United  States  has  juris- 
diction, a  superior  court  of  the  United  States  will  not  interfere.^ 
Mere  errors  in  point  of  law,  however  serious,  committed  by  a 
criminal  court  in  the  exercise  of  its  jurisdiction  over  a  case 
properly  subject  to  its  cognizance  cannot  be  reviewed  by  habeas 
corpus.  That  writ  cannot  be  employed  as  a  substitute  for  a  wTit 
of  error .^     But  if  the  tribunal  of  original  jurisdiction  acts  beyond 

'  Henry  v.  Henkel.  235  U.  S.  219,  L.  ed.  969,  35  S.  C.  582 ;    Myers  v. 

59  L.  ed.  203,  35  S.  C.  54.  HaUigan,  244  Fed.  420,  157  C.  C.  A. 

§  528.    1  Frank    v.    Mangum,    237  46  (9th  Cir.) ;  Markinson  v.  Boucher, 

U.  S.  309,  59  L.  ed.  969,  35  S.  C.  582 ;  175  U.  S.  184,  44  L.  ed.  124,  20  S. 

Ex  parte  Jim  Hong,   211   Fed.   76,  C.   76;    Walters   v.   McKinnis,   221 

127  C.  C.  A.  569  (9th  Cir.).  Fed.  746;    Tinsley  v.  Anderson,  171 

2  Ex  parte  Coatz,  242  Fed.  1003;  U.  S.  101,  105,  43  L.  ed.  91,  18  S.  C. 
United  States  ex  rel.  Fong  On  v.  805;  ColUns  v.  Johnston,  237  U.  S. 
McCarthy,  228  Fed.  398;  Horner  502,  59  L.  ed.  1071,  35  S.  C.  649; 
V.  United  States,  143  U.  S.  570,  36  Baker  v.  Grice,  169  U.  S.  284,  290, 
L.  ed.  266,  12  S.  C.  522 ;  In  re  Cortes,  42  L.  ed.  748,  18  S.  C.  323 ;  Re 
136  U.  S.  330,  34  L.  ed.  464,  10  S.  Frederick,  149  U.  S.  70,  75,  37  L.  ed. 
C.  1031;  Stevens  v.  Fuller,  136  U.  653,  13  S.  C.  793;  Ex  parte  RoyaU, 
S.  468,  34  L.  ed.  461,  10  S.  C.  911;  117  U.  S.  241,  250,  29  L.  ed.  868,  6 
Re  Fassctt,  142  U.  S.  479,  483,  35  S.  C.  734;  Ex  parte  Siebold,  100 
L.  ed.  1087,  12  S.  C.  295 ;  Ex  parte  U.  S.  371,  375,  25  L.  ed.  717 ;  Ex 
Jim  Hong,  211  Fed.  73,  76,  127  C.  C.  parte  Parks,  93  U.  S.  18,  23  L.  ed. 
A.  569  (9th  Cir.) ;  United  States  787 ;  Morgan  v.  Sylvester,  231  Fed. 
ex  rel.  Koopowitz  v.  Finlcy,  245  Fed.  886,  146  C.  C.  A.  82  (Sth  Cir.) ; 
871.  Collins    v.    Morgan,    243    Fed.    495, 

3  Filer  v.  Steele,  228  Fed.  242,  245 ;  156  C.  C.  A.  193  (8th  Cir.) ;  McMick- 
Ex  parte  Merritt,  245  Fed.  778;  ing  v.  Schiclds,  238  U.  S.  99,  59  L. 
Frank  v.  Mangum,  237  U.  S.  309,  59  ed.   1220,  35  S.  C.  665 ;    Ex  parte 

432 


Chap.  XLII]      REGULAR  PROCEDURE  SHOULD  BE  FOLLOWED      [§  529 

the  scope  of  its  authority,  or  fails  to  accord  the  accused  a  fair 
trial  or  rejects  proper  evidence  offered  by  him,  then  relief  can  and 
should  be  afforded  by  habeas  corpus.^  If  the  court  which  renders 
judgment  has  not  jurisdiction  to  render  it,  either  because  the  pro- 
ceedings or  the  law  under  which  they  are  taken  are  unconstitutional, 
or  for  any  other  reason,  the  judgment  is  void  and  may  be  questioned 
collaterally,  and  a  defendant  who  is  imprisoned  under  and  by  virtue 
of  it  may  be  discharged  from  custody  on  habeas  corpus.^ 

§  529.  Regular  Procedure  Should  Be  Followed. 

In  the  absence  of  exceptional  circumstances  in  criminal  cases, 
the  regular  judicial  procedure  should  be  followed  and  habeas 
corpus  should  not  be  granted  in  advance  of  trial. ^  It  has  been 
demonstrated  at  the  bar  that  the  question  brought  forward  on  a 
habeas  corpus  is  always  distinct  from  that  which  is  involved  in  the 
cause  itself.  The  question  whether  the  individual  shall  be  im- 
prisoned is  always  distinct  from  the  question  whether  he  shall  be 
convicted  or  acquitted  of  the  charge  on  which  he  is  to  be  tried, 
and  therefore  these  questions  are  separated  and  may  be  decided 
in  different  courts.  The  decision,  that  the  individual  shall  be 
imprisoned,  must  always  precede  the  application  for  a  writ  of 
habeas  corpus  and  this  writ  must  always  be  for  the  purpose  of 
revising  that  decision  and  is  therefore  appellate  in  its  nature.^  The 
regular  course  of  proceedings  having  for  their  end  to  determine 

Tinkoff,   254   Fed.   222 ;    Harlan  v.  §  529.   i  Riggins  v.  United  States, 

McGourin,  218  U.  S.  442,  54  L.  ed.  199  U.  S.  547,  50  L.  ed.  303,  26  S.  C. 

1101,  31  S.  C.  44.  147;    Glasgow  v.  Moyer,  225  U.  S. 

*  Angelus  v.  Sullivan,  246  Fed.  54,  420,  56  L.  ed.  1147,  32  S.  C.  753; 

158  C.  C.  A.  280  (2d  Cir.) ;  Ex  parte  Jones   v.    Perkins,    245    U.    S.    390, 

Cohen,  254  Fed.  711.  62  L.  ed.  358,  38  S.  C.  166;    In  re 

5  Ex  parte  Lange,   18  Wall.    (U.  Lincoln,  202  U.  S.  178,  50  L.  ed.  984, 

S.)    163,   21   L.   ed.   872 ;    Ex  parte  26  S.  C.  602. 

Siebold,  100  U.  S.  371,  25  L.  ed.  717;  ^  Ex    parte    Bollman,    4    Cranch 

Ex  parte  Nielsen,  131  U.  S.  176,  33  (U.  S.),  75,  2  L.  ed.  554;    Riggins 

L.  ed.  118;   Riggins  ;;.  United  States,  v.    United   States,    199    U.    S.    547, 

199  U.  S.  547,  50  L.  ed.  303,  26  S.  C.  50  L.  ed.  303,  26  S.  C.  147 ;   United 

147;  Ex  parte  Royall,  117  U.  S.  241,  States  v.  HamQton,  3  DaU.  (U.  S.) 

29  L.  ed.  868,  6  S.  C.  734 ;  Ex  parte  17,  1  L.  ed.  490 ;   Ex  parte  Virginia, 

Yarbrough,  110  U.  S.  651,  28  L.  ed.  100  U.  S.  339,  25  L.  ed.  676  ;  Ex  parte 

274,  4  S.  C.  152;   Mackey  v.  Muller,  RoyaU,  117  U.  S.  241,  29  L.  ed.  868, 

126  Fed.  161,  62  C.  C.  A.  139  (9th  6  S.  C.  734;    Ex  parte  Clarke,  100 

Cir.).                            '  U.  S.  399,  25  L.  ed.  715. 

VOL.  1  —  28  433 


§529] 


HABEAS   CORPUS 


[Chap.  XLll 


whether  the  prisoner  shall  be  held  or  released  cannot  be  thwarted 
by  alleging  want  of  jurisdiction  and  petitioning  for  habeas  corpus 
mainly  for  the  purpose  of  securing  an  earlier  hearing.^ 

§  530.   Sufficiency  of  Indictment,  etc. 

The  sufficiency  of  the  indictment  as  a  matter  of  technical 
pleading  will  not  be  inquired  into  on  habeas  corpus,^  nor  the 
sufficiency  of  the  acts  set  forth  in  an  agreed  statement  to  con- 
stitute a  crime. ^  Mere  irregularities  in  arrest  are  not  alone  grounds 
for  the  issue  of  habeas  corpus.^  Disqualifications  of  grand  jurors 
can  be  corrected  by  writ  of  error  and  therefore  will  not  authorize 
habeas  corpus  proceedings  if  jurisdiction  otherwise  exists.^  Dis- 
regard of  comity  between  Federal  Courts  at  the  instance  of  the 
government  is  not  an  invasion  of  the  accused's  constitutional 
rights  which  can  be  attacked  on  habeas  corpus.^  Disputed  ques- 
tions of  fact  cannot  be  reviewed  on  habeas  corpu^.^  Where  a 
registrant  under  the  Selective  Service  Law  is  certified  into  the 
military  service,  the  decisions  of  the  examining  boards  as  to  his 
physical  condition  cannot  be  reviewed  on  habeas  corpus^  The 
constitutionality  of  an  act  cannot  be  tested  by  habeas  corpus  in 


3  Ex  parte  Simon,  208  U.  S.  144. 
52  L.,  ed.  429,  28  S.  C.  238. 

§  530.  1  Reed  v.  United  States, 
224  Fed.  378,  140  C.  C.  A.  64  (9th 
Cir.) ;  Dimmick  v.  Tompkins,  194 
U.  S.  540,  48  L.  ed.  1110,  24  S.  C. 
780;  Connella  v.  Haskell,  158  Fed. 
285,  87  C.  C.  A.  Ill  (8th  Cir.); 
Ex  parte  Siebold,  100  U.  S.  371, 
25  L.  ed.  717;  Matter  of  Gregory, 
219  U.  S.  210,  55  L.  ed.  184,  31  S. 
C.  143;  Kohl  v.  Lehlback,  160  U. 
S.  293,  40  L.  ed.  432,  16  S.  C.  304 ; 
Bergemann  v.  Backer,  157  U.  S.  655, 
39  L.  ed.  845,  15  S.  C.  727;  Drew 
V.  Thaw,  235  U.  S.  432,  59  L.  ed. 
302,  35  S.  C.  137 ;  Ex  parte  Bird.seyc, 
244  Fed.  972,  974,  Affirmed  246 
U.  S.  657,  62  L.  ed.  925,  38  S.  C.  424 ; 
Pierce  v.  Crcccy,  210  U.  S.  387, 
52  L.  ed.  1113,  28  S.  C.  714;  Munscy 
V.  Clough,  196  U.  S.  364,  49  L.  ed. 
615,  25  S.  C.  282. 
434 


^CoUins  V.  Morgan,  243  Fed. 
495,  156  C.  C.  A.  193  (8th  Cir.). 

3  Price  V.  McCarty,  89  Fed.  84, 
32  C.  C.  A.  162  (2d  Cir.);  DaUe- 
magne  v.  Moisan,  197  U.  S.  169, 
49  L.  ed.  709,  25  S.  C.  422. 

^  Kaizo  V.  Henry,  211  U.  S.  146, 
53  L.  ed.  125,  29  S.  C.  41 ;  Matter 
of  Moran,  203  U.  S.  96,  51  L.  ed. 
105,  27  S.  C.  25;  Harlan  v.  Mc- 
Gourin,  218  U.  S.  442,  54  L.  ed. 
1101,  31  S.  C.  44;  In  re  Wilson, 
140  U.  S.  575,  35  L.  ed.  513,  11  S. 
C.  870. 

^Peckham  v.  Henkel,  216  U.  S. 
483,  54  L.  ed.  579,  30  S.  C.  255. 

6  Ex  parte  Graber,  247  Fed.  882 ; 
In  re  Strauss,  126  Fed.  327,  63  C.  C. 
A.  99  (2d  Cir.). 

'  De  Genaro  v.  Johnson,  249  Fed. 
504. 


Chap.  XLII]  EXCESSIVE   SENTENCE  [§  531 

criminal  proceedings.  While  some  of  the  earlier  cases  ^  held  that 
it  could,  in  the  case  of  Johnson  v.  Hoy  "  the  Supreme  Court 
flatly  laid  down  the  rule  that  the  writ  of  habeas  corpus  will  not 
issue  to  test  the  constitutionality  of  a  law  in  a  criminal  case  before 
trial,  and  that  the  only  way  to  bring  the  act  before  the  Supreme 
Court  is  by  writ  of  error.  Habeas  corpus  will  not  lie  to  release 
from  imprisonment,  upon  an  indictment  charging  the  defendant 
with  refusing  contrary  to  Sections  101-104  (U.  S.  Compiled  Stat- 
utes 1901)  to  testify  and  give  information  to  a  congressional  com- 
mittee. Whether  the  congressional  committee  acted  within  its 
jurisdiction  is  a  matter  to  be  argued  before  the  court  where  the 
indictment  is  pending.^"  Nor  will  the  courts  interfere  by  habeas 
corpus  under  a  commitment  based  upon  an  order  of  the  House  of 
Representatives,  when  that  body,  or  a  committee  appointed  by 
it,  acts  in  a  judicial  capacity .^^  A  court  cannot,  on  habeas  corpus, 
review  a  decision  upon  the  legal  sufficiency  of  a  defense  of  former 
jeopardy.^^  The  Supreme  Court  has  frequently  decided  that 
matters  of  defense  cannot  be  heard  on  habeas  corpus  to  test  the 
validity  of  an  arrest  in  extradition,  but  must  be  heard  and  decided 
at  the  trial  by  the  coiuts  of  the  demanding  State.^^  The  prin- 
ciple of  the  cases  is  the  simple  one  that  if  a  court  has  jurisdiction 
of  the  case  the  writ  of  habeas  corpus  cannot  be  employed  to  retry 
the  issues,  whether  of  law,  constitutional  or  other,  or  of  fact.^* 

§  531.   Excessive  Sentence. 

The  excess  of  a  sentence  or  judgment  beyond  the  jurisdiction 
of  the  court  which  renders  it  is  as  void  as  a  judgment  without 
any  jurisdiction  and  a  prisoner  held  under  such  excess  may  be 
released  by  writ  of  habeas  corpus}     Habeas  corpus  will  lie  where 

»  Cooley    V.     Morgan,    221     Fed.  156  C.  C.  A.  193  (8th  Cir.) ;  Ex  parte 

252,   136  C.  C.  A.  210   (8th  Cir.) ;  Bigelow,    113   U.   S.   328,   28  L.  ed. 

Re  Siebold,  100  U.  S.  371,  25  L.  ed.  1005,  5  S.  C.  542 ;  hut  see  earUer  cases 

717 ;    Ex  parte  Nielsen,    131   U.   S.  under  heading  former  jeopardy. 

176,  33  L.  ed.  118,  9  S.  C.  672.  i^  Biddinger    v.    Commissioner    of 

8  227  U.  S.  245,  57  L.  ed.  497,  PoUce,  City  of  New  York,  245  U.  S. 

33  S.  C.  240.  128,  62  L.  ed.  193,  38  S.  C.  41. 

10  Henry  v.  Henkel,  235  U.  S.  219,  »^  Glasgow  v.    Moyer,    225   U.   S. 

59  L.  ed.  203,  35  S.  C.  54.  420,  56  L.  ed.  1147,  32  S.  C.  753. 

"  United   States  ex  rel.  Marshall  §  531.   i  Stevens   v.    McClaughry, 

V.  Gordon,  235  Fed.  422.  207  Fed.  18,  125  C.  C.  A.  102  (8th 

12  Collins  V.  Morgan,  243  Fed.  495,  Cir.).                                      ' 

435 


§  531]  HABEAS   CORPUS  [Chap.  XLll 

a  district  court  transcends  its  powers  by  imposing  a  sentence  of 
imprisonment  in  a  penitentiary  for  a  term  not  authorized  by  the 
United  States  statutes,^  but  only  that  part  of  the  sentence  in 
excess  of  the  law  will  be  void ;  the  legal  portion  cannot  be  attacked 
in  habeas  corpus  proceedings  when  the  illegal  part  is  stricken 
out,^  or  may  on  writ  of  error  be  annulled.^  On  excessive  sentence, 
the  prisoner  may  be  discharged  on  writ  of  habeas  corpus  after 
serving  the  lawful  part  of  the  term.^  Sentences  for  two  alleged 
offenses,  unlawful  cohabitation  under  the  Federal  statute  and  adul- 
tery, which  were  but  a  single  offense,  were  in  excess  of  the  powers 
and  jurisdiction  of  the  court  and  habeas  corpus  was  granted.® 
The  excess  of  a  sentence  beyond  the  jurisdiction  of  the  court  which 
renders  it,  in  a  case  in  which  it  has  ample  jurisdiction  of  the  subject 
matter  of  the  case  and  of  the  parties,  is  as  void  as  a  judgment  in  a 
case  in  which  the  court  has  no  jurisdiction,  and  a  prisoner  held 
under  such  excess  alone  is  entitled  to  his  release  by  writ  of  habeas 
corpusJ  Ordinarily  the  law  will,  on  habeas  corpus,  grant  no 
relief  to  a  prisoner  under  such  circumstances  until  the  legal  part 
of  the  sentence  is  served,^  but  it  is  held  that  a  prisoner  in  a  Federal 
penitentiary  under  a  sentence  imposing  two  terms  on  different 
counts,  to  be  served  successively,  the  second  of  which  terms  is 
illegal,  is  entitled  to  be  discharged  on  habeas  corpus  from  such  part 
of  the  sentence,  although  his  first  term  has  not  expired,  because 
of  the  effect  which  the  illegal  part  of  the  sentence  has  on  his  right 
to  petition  for  parole  under  the  parole  law.^    The  fact  that  a 

2  In  re  MHIs,  135  U.  S.  263,  34  v.  Atlantic  &  N.  C.  R.  R.  Co.,  131 
L.  ed.  107,  10  S.  C.  762;  In  re  Bon-  Fed.  95;  In  re  Burns,  113  Fed.  987. 
ner,  151  U.  S.  242,  38  L.  ed.  149,  See  also  In  re  Graham,  138  U.  S. 
14  S.  C.  323.  461,  34  L.  ed.  1051,  11  S.  C.  363. 

3  Harlan  v.  McGourin,  218  U.  « In  re  Nielsen,  131  U.  S.  176, 
S.  442,  54  L.  ed.  1101,  31  S.  C.  44.  33  L.  ed.  118,  9  S.  C.  672. 

See   also   Bryant    v.    United    States,  ^  Stoneberg  v.   Morgan,  246  Fed. 

214  Fed.  51,  130  C.  C.  A.  491  (8th  98,  158  C.  C.  A.  324  (8th  Cir.). 
Cir.).  8  O'Brien     v.     McClaughry,     209 

*  United  States  v.  Pridgeon,   153  Fed.  816,  126  C.  C.  A.  540  (8th  Cir.) ; 

U.  S.  48,  38  L.  ed.  631,  14  S.  C.  746.  In  re  Swan,  150  U.  S.  037,  37  L.  ed. 

6  United  States  v.  Peekc,  153  Fed.  1207,  14  S.  C.  225  ;  Collins  v.  Morgan, 

166,  82  C.  C.  A.  340  (3d  Cir.) ;  Mun-  243  Fed.  495,  156  C.  C.  A.  193  (8th 

eon    V.    McClaughry,    198    Fed.    72,  Cir.). 

117  C.  C.  A.  180  (8th  Cir.) ;  Ex  parte  »  O'Brien  v.  McClaughry,  209  Fed. 

Hewitt,  Fed.  Cas.  No.  6442;  Cuyler  816,  126  C.  C.  A.  540  (8th  Cir.). 
436 


Chap.  XLII]      EXTRADITION   PROCEEDINGS   UNDER  TREATY         [§  533 

sentence  providing  for  imprisonment  and  fine  imposes  no  fine  is 
not  available  on  habeas  corpus,  as  the  defendant  is  not  injured 
thereby.^"  Where  the  defect  in  a  sentence,  attacked  in  an  appli- 
cation for  habeas  corpus,  does  not  inhere  in  the  trial  or  verdict,  but 
relates  only  to  the  sentence,  the  court,  instead  of  discharging  the 
prisoner,  should  return  him  to  the  trial  court  for  a  correction 
of  the  sentence.^^ 

§  532.   Special  Uses  of  Writ. 

Some  of  the  special  uses  of  the  writ  of  habeas  corpus  are :  (a)  to 
aid  appellate  jurisdiction ;  ^  (6)  to  inquire  into  the  identity  of  a 
prisoner  in  an  extradition  proceeding ;  ^  (c)  to  review  an  order  of 
deportation.^ 

§  533.  Extradition  Proceedings  under  Treaty. 

The  settled  rule  is  that  the  writ  of  habeas  corpus  cannot  perform 
the  office  of  a  writ  of  error,  and  that,  in  extradition  proceedings,  if 
the  committing  magistrate  has  jurisdiction  of  the  subject  matter 
and  of  the  accused,  and  the  offense  charged  is  within  the  terms  of 
the  treaty  of  extradition,  and  the  magistrate,  in  arriving  at  a 
decision  to  hold  the  accused,  has  before  him  competent  legal 
evidence  on  which  to  exercise  his  judgment  as  to  whether  the 
facts  are  sufficient  to  establish  the  criminality  for  the  purposes 
of  extradition,  such  decision  cannot  be  reviewed  on  habeas  corpus} 

10  Linningen  v.  Morgan,  241  Fed.  Ex  parte  Gytl,  210  Fed.   918 ;    Ex 

C45,   154  C.   C.  A.  403   (8th  Cir.) ;  parte  Lam  Pui,  217  Fed.  465 ;   Chin 

Bartholomew  v.   United  States,    177  Yoy  v.  United  States,   208   U.  S.  8, 

Fed.  902,  101  C.  C.  A.  182  (6th  Cir.).  52  L.  ed.  369,  28  S.  C.  201 ;    Wong 

"  Bryant   v.    United   States,    214  Wing  v.  United  States,  163  U.  S.  228, 

Fed.  51,  130  C.  C.  A.  491  (8th  Cir.) ;  41  L.  ed.  140,  16  S.  C.  977;   United 

In  re  Bonner,  151  U.  S.  242,  38  L.  States  ex  rel.  Huber  v.   Sibray,  178 

ed.  149,  14  S.  C.  323.  Fed.  144 ;  United  States  ex  rel.  Bosny 

§532.    1  Frank   v.    Mangum,    237  v.    Williams,    185    Fed.    598;     Roux 

TJ.  S.  309,  59  L.  ed.  969,  35  S.  C.  v.  Commissioner  of  Immigration,  203 

582 ;   In  re  Chetwood,  165  U.  S.  443,  Fed.  413,  121  C.  C.  A.  523  (9th  Cir.) ; 

41  L.  ed.  782,  17  S.  C.  385;    In  re  United    States    ex   rel.  D'Amato    v. 

Watts  &  Sachs,  190  U.  S.  1,  47  L.  ed.  Williams,  193  Fed.  228. 

933,  23  S.  C.  718.  §  533.    i  Terlinden   v.    Ames,    184 

2  Ex  parte  Chung  Kin  Tow,  218  U.  S.  270,  278,  46  L.  ed.  534,  22  S. 
Fed.  185.  C.  484 ;    Ornelas  v.  Ruiz,  161  U.  S. 

3  Whitfield  v.  Hanges,  222  Fed.  502,  508,  40  L.  ed.  787,  16  S.  C.  689 ; 
745,  138  C.  C.  A.  199  (8th  Cir.) ;  Bryant  v.  United  States,  167  U.  S. 
Hanges  v.  Whitfield,  209  Fed.  075 ;  104,  42  L.  ed.  94,  17  S.  C.  744. 

437 


§  533]  HABEAS    CORPUS  [Chap.  XLU 

The  court  issuing  the  writ  may  inquire  and  adjudge  whether  the 
commissioner  acquired  jurisdiction  of  the  matter,  by  conforming 
to  the  requirements  of  the  treaty  and  the  statute  of  extradition ; 
whether  he  exceeded  his  jurisdiction;  and  whether  he  had  any 
legal  or  competent  evidence  of  facts  before  him,  on  which  to 
exercise  a  judgment  as  to  the  criminality  of  the  accused.  But 
such  court  is  not  to  inquire  whether  the  legal  evidence  of  facts 
before  the  commissioner  was  sufficient  or  insufficient  to  warrant 
his  conclusion.^ 

§  534.  Interstate  Extradition. 

A  person  held  on  an  executive  warrant  for  extradition  to  an- 
other State  may  test  the  legality  of  his  detention  under  Article 
4,  §  2,  of  the  United  States  Constitution  by  habeas  corpus  pro- 
ceedings in  a  Federal  Court.^  The  question  whether  the  person 
sought  to  be  extradited  will  get  a  fair  trial  in  the  demanding  State 
will  not  be  considered  on  habeas  corpus.^  If  the  extradition  war- 
rant of  the  governor  of  the  asylum  State  shows  on  its  face  that  all 
the  necessary  prerequisites  have  been  complied  with,  this  is  con- 
clusive, unless  the  proceedings  before  the  governor  appear  not 
to  have  been  regular.^  Therefore  the  burden  is  on  the  prisoner 
to  show  that  he  is  not  in  fact  a  fugitive  from  justice,  and  that 
burden  requires  evidence  which  is  practically  conclusive.^ 

§  535.  With  Certiorari. 

In  all  cases  where  a  lower  Federal  Court  has,  in  the  exercise  of 
its  original  jurisdiction,  caused  a  prisoner  to  be  brought  before  it, 
and  has,  after  inquiring  into  the  cause  of  detention,  remanded  him 
to  the  custody  from  which  he  was  taken,  the  Supreme  Court, 
in  the  exercise  of  its  appellate  jurisdiction,  may,  by  the  writ  of 

^Terlinden   v.   Ames,    184   U.    S.  ReiUy,  116  U.  S.  80,  29  L.  ed.  544, 

270,  278,  46  L.  ed.  534,  22  S.  C.  484 ;  6  S.  C.  291. 

In   re  Stupp,    12   Blatch.   501,   Fed.  "^  United  States  ex  rel.  Brown  v. 

Cas.   No.    13563;    In  re  Adutt,   55  Cooke,  209  Fed.  607,  126  C.  C.  A. 

Fed.  376.  429  (3d  Cir.). 

§  534.    »  Ex    parte    Birdseye,    244  ^  Chung  Kin  Tow  v.   Flynn,  218 

Fed.    972,    Affirmed   246   U.  S.  657,  Fed.  64,  133  C.  C.  A.  666  (1st  Cir.). 
62  L.  ed.  925,  38  S.  C.  424;    Pierce  <  Ex  parte  Montgomery,  244  Fed. 

V.  Creecy,  210  U.  S.  387,  52  L.  ed.  967,  Affirmed  246  U.  S.  656,  62  L. 

1113,    28    S.    C.    714;     Roberts    v.  ed.  924,  38  S.  C.  424. 
438 


Chap.  XLII]  DEPORTATION    PROCEEDINGS  [§  537 

habeas  corpus,  aided  by  the  writ  of  certiorari,  revise  the  decision 
of  the  lower  court,  and  if  it  be  found  unwarranted  by  law,  relieve 
the  prisoner  from  the  unlawful  restraint  to  which  he  has  been 
remanded.  It  is  unimportant  in  what  custody  the  prisoner  may 
be,  if  it  is  a  custody  to  which  he  has  been  remanded  by  the  order 
of  an  inferior  court  of  the  United  States.  It  is  not  necessary  that 
the  action  of  the  inferior  court  must  have  resulted  in  a  commit- 
ment for  trial  in  a  civil  court;  relief  can  be  had  in  the  Supreme 
Court,  by  habeas  corpus,  from  imprisonment  under  military 
authority  to  which  the  petitioner  may  have  been  remanded  by 
such  a  court  .^ 

§  536.   Contempt. 

Persons  committed  for  contempt  in  failing  to  comply  with  an 
order  made  in  the  course  of  a  proceeding  of  which  the  judge  had 
no  jurisdiction,  and  which  order  was  therefore  absolutely  void, 
are  entitled  to  be  discharged  on  habeas  corpus} 

§  537.  Deportation  Proceedings. 

It  is  universally  held  that  the  courts  have  no  jurisdiction  to 
review  the  action  of  the  immigration  authorities  in  rejecting  an 
alien  unless  he  has  been  denied  a  fair  hearing  by  such  authorities.^ 
But  the  court,  on  habeas  corpus,  will  grant  an  alien,  ordered  de- 
ported without  a  fair  hearing,  a  conditional  discharge  to  be  effective 
in  case  the  officers  fail  to  give  the  alien  the  fair  hearing  on  lawful 
evidence  required  by  the  Immigration  Act  within  a  reasonable 
time.^    A  court  may  determine,  on  habeas  corpus,  the  jurisdictional 

§  535.    1  Ex  parte  Yerger,  8  Wall.  282 ;     Low    Wah    Suey    v.    Backus, 

(U.    S.)   85,    19    L.  ed.    332;    Kurtz  225  U.  S.  460,  56  L.  ed.  1165,  32  S. 

V.  Moffitt,  115  U.  S.  487,  29  L.  ed.  C.  734;    Prentis  v.  Seu  Leung,  203 

458,  6  S.  C.  148.  Fed.  25,  121  C.  C.  A.  389  (7th  Cir.) ; 

§  536.    1  In  re  Saw>-er,  124  U.  S.  Prentis    v.    Cosmos,    196    Fed.    372, 

200,  31  L.  ed.  402,  8  S.  C.  482;    In  116  C.  C.  A.  419  (7th  Cir.). 

re  Burrus,  136  U.  S.  586,  34  L.  ed.  « United    States    v.    Petkos,    214 

500,  10  S.  C.  850 ;    In  re  Delgado,  Fed.  978,  131  C.  C.  A.  274  (1st  Cir.) ; 

140  U.  S.  586,  35  L.  ed.  578,  11  S.  C.  Billings    v.    Sitner,    228    Fed.    315, 

874 ;    In  re  Lennon,  166  U.  S.  548,  142  C.  C.  A.  607  (1st  Cir.) ;   White 

41  L.  ed.  1110,  17  S.  C.  658;   In  re  v.  Wong  Quen  Luck,  243  Fed.  547, 

McKenzie,  180  U.  S.  536,  45  L.  ed.  156  C.  C.  A.  245  (9th  Cir.) ;  Ex  parte 

657,  21  S.  C.  468 ;    In  re  Ayers,  123  Lalime,  244  Fed.  279 ;    Woo  Hoo  v. 

V.  S.  443,  31  L.  ed.  2i6,  8  S.  C.  164.  W^hite,  243  Fed.  541,   156  C.  C.  A. 

§  537.   1  Ex  parte  Joyce,  212  Fed.  239  (9th  Cir.). 

439 


§  537]  HABEAS    CORPUS  [Chap.  XLll 

question  as  to  whether  there  was  any  evidence  to  support  the 
finding  of  a  commissioner  of  immigration  in  deportation  pro- 
ceedings.^ Where  the  record  shows  that  the  Commissioner  of 
Immigration  has  exceeded  his  powers  the  ahen  may  obtain  his 
release  upon  habeas  corpus.'^  The  writ  has  been  frequently  granted 
in  cases  under  the  Chinese  Exclusion  Act  where  a  Chinese  person 
seeking  to  enter  the  United  States  has  been  denied  a  fair  hearing 
and  ordered  deported.^ 

§  538.   Military  Authorities. 

It  is  settled  law  that  if  a  military  tribunal  has  jurisdiction  to 
try  a  person  charged  with  an  offense  against  military  law,  the  civil 
courts  cannot  interfere  by  writ  of  habeas  corpus}  It  is  only 
where  a  court-martial  is  without  jurisdiction  and  the  party  is 
subjected  to  illegal  imprisonment  that  a  writ  of  habeas  corpus  can 
be  invoked;  otherwise  a  civil  court  will  not  interfere  with  its 
judgment.^  Habeas  corpus  is  the  appropriate  remedy  to  test 
whether  exemption  boards  acted  within  their  jurisdiction.  Habeas 
corpus  will  lie  to  obtain  the  discharge  of  minors  who  have  fraudu- 
lently enlisted  in  the  United  States  army  or  navy.^ 

3  Katz  V.  Commissioner  of  Immi-  90  C.  C.  A.  280    (4th  Cir.)  ;    In  re 

gration,  245  Fed.  316,  157  C.  C.  A.  Grimley,    137   U.  S.  147,  34  L.  ed. 

508  (9th  Cir.);    Backus  v.  Owe  Sam  636,  11  S.  C.  54;    United  States   v. 

Goon,  235  Fed.  847,   149  C.  C.  A.  Heyburn,  245  Fed.  360 ;  InreTraina, 

159  (;9th  Cir.).  248  Fed.  1004;   United  States  ex  rel. 

^begiow  V.  Uhl,  239  U.  S.  3,  60  Brown  v.  Commanding  Officer,  248 

L.  ed.  114,  36  S.  C.  2;    Nisliimura  Fed.  1005. 

Ekin   V.    United   States,    142   U.   S.  '  Ex  parte  Dickey,  204  Fed.  322 ; 

651,  35  L.  ed.  114G,  12  S.  C.  336.  Ex    parte    Tucker,    212    Fed.    569; 

6  Chin  Yow  v.  United  States,  208  Ex  parte  Blazekovic,  248  Fed.  327, 

U.  S.  8,  52  L.  ed.  369,  28  S.  C.  201 ;  Folloioing   Angelus   v.   Sullivan,   246 

Fong   Yue   Ting   v.    United   States,  Fed.  54 ;  United  States  ex  rel.  Pfeffer 

149  U.  S.  698,  37  L.  ed.  905,  13  S.  v.  Bell,  248  Fed.  992 ;    United  States 

C.   1016  ;  Chow  Loy  v.  United  States,  ex  rel.  Cubyluck  v.  Bell,  248  Fed.  995 ; 

112  Fed.  354,  50  C.  C.  A.  279  (1st  United    States    ex    rel.   BartaHui    v. 

Cir.) .  Mitchell,  248  Fed.  997  ;  Summertime 

§  538.   1  Ex     parte     Dostal,     243  v.  Local  Board,  248  Fed.  832. 
Fed.  604 ;   United  States  v.  Williford,  ^  United  States  v.   Williford,   220 

220  Fed.  291,  136  C.  C.  A.  273  (2d  Fed.  291,  130  C.  C.  A.  273  (2d  Cir.) ; 

Cir.)  ;  Iloskins  v.  Dickerson,  239  Fed.  In  re  Morrissoy,   137  U.  S.   157,  34 

275,  152   C.  C.  A.   203    (5th   Cir.);  L.  ed.  644,  11  S.  C.  57;    Ex  parte 

Dillingham  v.  Booker,  163  Fed.  696,  Rush,  246  Fed.  172. 

440 


Chap.  XLII]  SCOPE   OF  JURISDICTION  [§  542 

§  539.  Power  of  Judges  to  Grant  Writs. 

Section  752  of  the  Revised  Statutes  provides  as  follows  :  "  The 
several  justices  and  judges  of  the  said  courts,  within  their  respective 
jurisdictions,  shall  have  power  to  grant  writs  of  habeas  corpus  for 
the  purpose  of  an  inquiry  into  the  cause  of  restraint  of  liberty,  "^y 

§  540.    Territorial  Jurisdiction. 

The  power  to  issue  writs  of  habeas  corpus  is  by  Sections  751,  752 
and  753  of  the  Revised  Statutes  expressly  restricted  to  the  terri- 
torial jurisdiction  of  the  court  to  which  the  application  is  made.^ 

§  541 .  When  Prisoner  Is  in  Jail. 

Section  753  of  the  Revised  Statutes  provides :  "  The  writ  of 
habeas  corpus  shall  in  no  case  extend  to  a  prisoner  in  jail,  unless 
where  he  is  in  custody  under  or  by  color  of  the  authority  of  the 
United  States,  or  is  committed  for  trial  before  some  court  thereof ; 
or  is  in  custody  for  an  act  done  or  omitted  in  pursuance  of  a  law 
of  the  United  States,  or  of  an  order,  process,  or  decree  of  a  court 
or  judge  thereof ;  or  is  in  custody  in  violation  of  the  Constitution 
or  of  a  law  or  treaty  of  the  United  States;  or,  being  a  subject 
or  citizen  of  a  foreign  state,  and  domiciled  therein,  is  in  custody 
for  an  act  done  or  omitted  under  any  alleged  right,  title,  authority, 
privilege,  protection,  or  exemption  claimed  under  the  commission, 
or  order,  or  sanction  of  any  foreign  state,  or  under  color  thereof 
the  validity  and  effect  whereof  depend  upon  the  law  of  nations; 
or  unless  it  is  necessary  to  bring  the  prisoner  into  court  to  testify."  ^ 

§  542.   Scope  of  Jurisdiction. 

This  section  contains  no  grant  of  power,  but  is  a  restriction 
upon  the  power  of  the  Federal  Courts,  prohibiting  the  issuance  of 
the  writ  of  habeas  corpus  in  behalf  of  a  prisoner  in  jail,  except  under 
the  prescribed  conditions  enumerated  in  the  section.^     The  juris- 

§539.   'Act    of    Sept.    24,   1789,  §541.   i  Act    of    Sept.    24,    1789, 

eh.  20,  1  Stat.  L.  81 ;    Act  of  Apr.  ch.  20,  1  Stat.  L.  81 ;    Act  of  Mar. 

10,    1869,   ch.   22,    16  Stat.   L.   44 ;  2,  1833,  ch.  57,  4  Stat.  L.  634 ;  Act 

Act  of  Mar.  2,  1833,  ch.  57,  4  Stat.  of  Feb.  5,  1867,  ch.  28,  14  Stat.  L. 

L.  634 ;   Act  of  Feb.  5,  1867,  ch.  28,  385 ;   Act  of  Aug.  29,  1842,  ch.  257, 

14  Stat.  L.   385 ;    Act  of  Aug.   29,  5  Stat.  L.  539. 
1842,  ch.  257,  5  Stat.  L.  539.  §  542.    '  ChfTord  v.  Williams,   131 

§540.   lEx    parte    Crouyet,    175  Fed.  100;    Ex  parte  Bell,  240  Fed. 

Fed.  230.  758. 

441 


§  542]  HABEAS  CORPUS  [Chap.  XLll 

diction  of  courts  of  the  United  States  to  issue  writs  of  habeas  corptis 
is  limited  to  cases  of  persons  alleged  to  be  restrained  of  their  liberty 
in  violation  of  the  Constitution  or  of  some  law  or  treaty  of  the 
United  States,  and  cases  arising  under  the  law  of  nations.^  It 
must  therefore  be  made  to  appear  upon  the  application  for  the 
writ  that  the  party  is  held  in  custody  in  violation  of  the  Con- 
stitution, laws  or  treaties  of  the  United  States.^  A  party  is  en- 
titled to  a  habeas  corpus  not  merely  where  the  court  is  without 
jurisdiction  of  the  cause,  but  where  it  has  no  constitutional  author- 
ity or  power  to  condemn  the  prisoner ;  ^  but  the  repugnancy  of  a 
statute  to  the  constitution  of  the  State  by  whose  legislature  it 
was  enacted  cannot  authorize  a  writ  of  habeas  corpus  from  a  court 
of  the  United  States  unless  the  petitioner  is  in  custody  by  virtue 
of  such  statute,  and  unless  also  the  statute  is  in  conflict  with  the 
Constitution  of  the  United  States.^ 

§  543.   "  In  Pursuance  of  Law." 

Any  obligation  fairly  and  properly  inferable  from  the  Con- 
stitution of  the  United  States,  or  any  duty  of  a  United  States 
marshal  to  be  derived  from  the  general  scope  of  his  duties  under 
the  laws  of  the  United  States,  is  a  "  law  "  within  the  meaning  of 
the  phrase  "  in  pursuance  of  a  law."  ^  "  This  of  course  means 
that  if  the  petitioner  is  held  in  custody  in  violation  of  the  Con- 
stitution or  a  law  of  the  United  States,  or  for  an  act  done  or 
omitted  in  pursuance  of  a  law  of  the  United  States,  he  must  be 
discharged."  ^  The  acts  of  the  legislature  of  a  territory  are  not 
laws  of  the  United  States.' 

2Carfer   v.    Caldwell,    200   U.    S.  272,  49  L.  ed.  422,   15  S.  C.  389; 

293,  50  L.  ed.  488,  26  S.  C.  264.  ffitchens    v.    Hamilton,    239    U.    S. 

"  In   re   Burrus,    136   U.   S.    586,  637,  60  L.  ed.  480,  36  S.  C.  446 ;  Ex 

34  L.  ed.  500,  10  S.  C.  850 ;    Carfer  parte  Januszewski,  196  Fed.  123. 
V.  Caldwell,  200  U.  S.  293,  50  L.  ed.  §  543.   i  In  re  Neagle,  135  U.  S. 

488,  26  S.  C.  264 ;    Storti  v.  Massa-  1,  59,  34  L.  ed.  55,  10  S.  C.  658. 
chusetts,  183  U.  S.  138,  46  L.  ed.  120,  ^  Walters  v.  McKinnis,  221  Fed. 

22  S.  C.  72 ;   Frank  v.  Mangum,  237  746 ;   In  re  Neagle,  135  U.  S.  1,  41, 

U.  S.  309,  59  L.  ed.  969,  35  S.  C.  582 ;  34  L.  ed.  55,  10  S.  C.  658.     See  also 

Rogers  v.  Peck,   199  U.  S.  425,  50  United    States    ex    rel.    McSweeney 

L.  cd.  256,  26  S.  C.  87.  v.  Fullhart,  47  Fed.  802. 

*In  re   Nielsen,    131   U.   S.    176,  ^  Connella   v.    Haskell,    158   Fed. 

184,  33  L.  ed.  118,  9  S.  C.  672.  285,  87  C.  C.  A.  Ill  (8th  Cir.). 

'  Andrews  v.   Swartz,    156  U.   S. 
442 


Chap.  XLII]  FROM  STATE   COURTS  [§  545 

§  544.  Pursuant  to  Order,  Process  or  Decree. 

A  person  who  is  imprisoned  under  conviction  of  a  State  court 
for  an  act  done  pursuant  to  an  order,  process  or  decree  of  a  court 
or  judge  of  the  United  States,  within  the  meaning  of  §  753  of 
the  Revised  Statutes,  may  apply  for  a  writ  oi  habeas  corpus' to  the 
United  States  Circuit  Judge,  who  has  the  power  to  discharge  him.^ 
Habeas  corpus  was  granted  where  it  was  alleged  that  the  act 
charged  as  a  crime  was  committed  by  the  prisoner  in  the  perform- 
ance of  his  duty  as  a  soldier  of  the  United  States ;  in  such  a  case  a 
court  or  judge  of  the  United  States  has  authority  to  determine 
summarily  as  a  fact  whether  or  not  such  allegation  is  true, 
and  if  found  to  be  true,  to  discharge  the  prisoner  on  the 
ground  that  the  State  is  without  jurisdiction  to  try  him  for  such 
act.2  In  the  case  cited  in  the  note  below  a  soldier  was  stationed 
to  guard  over  prisoners.  A  prisoner  attempted  to  escape,  where- 
upon the  soldier  fired,  killing  the  man.  The  soldier  was  arrested 
by  the  State  authorities,  charged  with  manslaughter,  but  the 
Federal  Court  held  that  the  State  Court  was  without  jurisdic- 
tion.^ 

§  545.  From  State  Courts. 

The  Federal  Courts  are  rather  averse  to  interfering  with  State 
Courts.  The  rule  is  well  settled  that  the  Federal  Court  will  not 
entertain  jurisdiction  on  habeas  corpus,  where  the  prisoner  is  held 
under  process  of  a  State  Court,  charged  with  the  violation  of  a 
State  statute,  except  in  cases  of  peculiar  urgency.^     Ordinarily,  the 

§  544.   1  Hunter    v.     Wood,     209  Pundt  v.   Pendleton,    167   Fed.   997 

U.  S.  205,  52  L.  ed.  747,  28  S.  C.  472,  (teamster  in  army  employment). 

Affirmed  155  Fed.  190  (railway  ticket  ^  United    States    v.    Lipsett,    156 

agent) ;     In    re    Leaken,    137    Fed.  Fed.  65. 

680  (Assistant  United  States  Attor-  ^  United  States  v.  Lipsett,  supra. 

ney) ;     United    States    ex    rel.    Mc-  §  545.    '  Urquhart  v.  Brown,  205 

Sweeney   v.    Fullhart,    47    Fed.   802  U.  S.  179,  51  L.  ed.  760,  27  S.  C. 

(United    States    Marshals    or    their  459;    Reid  v.  Jones,  187  U.  S.  153, 

deputies  executing  Federal  process);  47  L.  ed.  116,  23  S.  C.  89;    United 

United  States  ex  rel.  Flynn  v.  Full-  States   ex  rel.  Drury   v.   Lewis,    200 

hart,   106  Fed.   911    (Secret  Service  U.  S.  1,  50  L.  ed.  343,  26  S.  C.  229; 

Agents) ;    State  of  West  Virginia  v.  Markuson    v.    Boucher,    175    U.    S. 

Laing,  133  Fed.  887,  66  C.  C.  A.  617  184,  44  L.  ed.  124,  20  S.  C.  76 ;  Baker 

(members     of     posse     committees) ;  v.  Grice,  169  U.  S.  284,  291,  42  L.  ed. 

443 


§  545]  HABEAS   CORPUS  [Chap.  XLU 

Supreme  Court  of  the  United  States  will  not  issue  a  writ  of  habeas 
corpus  until  all  remedies  have  been  exhausted  in  the  highest 
courts  of  the  State ;  ^  and  even  then  mider  the  terms  of  §  753 
of  the  Revised  Statutes,  in  order  to  entitle  a  person  held  by  a 
State  to  a  \vrit  of  habeas  corpus,  it  must  appear  that  he  is  de- 
prived of  his  liberty  without  due  process  of  law  in  violation  of 
the  Fourteenth  Amendment  to  the  Constitution  of  the  United 
States.^  But  a  Federal  Court  has  power  to  discharge  from  im- 
prisonment, on  habeas  corpus,  a  person  convicted  and  sentenced 
by  a  State  Court  which  was  without  jurisdiction  and  whose  judg- 
ment is  therefore  void.'*  Other  exceptional  circumstances,  in 
which  habeas  corpus  has  been  granted  for  the  discharge  of  persons 
in  custody  under  process  from  a  State  Court,  are  found  in  the 
cases  in  the  note.^ 

§  546.   Citizens  of  Foreign  States. 

The  part  of  Revised  Statutes  §  753  relating  to  subjects  and 
citizens  of  foreign  states  does  not  give  to  such  subjects  and  citizens 
more  absolute  rights  to  habeas  corpus  than  belong  to  the  other 
classes  of  prisoners  specified  therein.  To  bring  the  subject  of  a 
foreign  state  within  the  section  it  must  further  appear  that  the 
petitioner's  domicile  was  in  the  foreign  state,  and  that  the  validity 
and  effect  of  the  right,  authority,  protection  or  exemption  claimed 
under  the  foreign  commission,  order  or  sanction,  depend  upon 
the  law  of  nations.^ 

748,  18  S.  C.  323 ;   Tinsley  v.  Ander-  Rogers  v.  Peck,   199  U.   S.   425,  50 

son,  171  U.  S.  101,  105,  43  L.  ed.  91,  L.  ed.  256,  26  S.  C.  87. 

96,  18  S.  C.  805 ;    Whitten  v.  Tom-  ^  Ex  parte  Van  Moore,  221  Fed. 

linson,  100  U.  S.  231,  40  L.  ed.  40G,  954. 

16  S.  C.  297 ;    Re  Fredrick,  149  U.  '■>  Boske  v.  Comingore,   177  U.  S. 

S.  70,  77,  37  L.  ed.  653,  13  S.  C.  793 ;  459,  44  L.  ed.  846,  20  S.  C.  701 ; 

Ex   parte    Royall,    117    U.    S.    241,  In  re  Loney,  134  U.  S.  372,  3  L.  ed. 

251,  29  L.  cd.  868,  6  S.  C.  734 ;  Henry  949,  10  S.  C.  584 ;   In  re  Neagle,  135 

V.  Henkel,  235  U.  S.  219,  228,  59  L.  U.  S.  1,  34  L.  ed.  55,  10  S.  C.  658; 

ed.  203,  35  S.  C.  54.  Wildenhus's  Case,   120  U.  S.   1,  30 

2  Frank   v.    Mangum,"  237   U.   S.  L.  cd.  565,  7  S.  C.  385 ;    StegaU  v. 
309,   59   L.   ed.   969,   35  S.  C.   582;  Thurman,   175  Fed.  813. 

United  States  v.  Sing  Tuck,  194  U.  §  546.   i  Horn  v.  Mitchell,  223  Fed. 

S.  161,  48  L.  ed.  917,  24  S.  C.  621.  549,    Affmned  232  Fed.  819,  147  C. 

3  Frank   v.    Mangum,    237    U.    S.  C.  A.  13  (1st  Cir.).     Affirmed  24:^\]. 
309,  59  L.  cd.  969,  35  S.  C.  582 ;  S.  247,  61  L.  ed.  700,  37  S.  C.  293. 

444 


Chap.  XLII]  who  may  petition  [§  549 

§  547.  For  Testimonial  Purposes. 

The  power  to  issue  the  writ  to  bring  a  prisoner  from  his  place 
of  confinement  to  testify  should  only  be  exercised  in  case  of 
necessity.^ 

§  548.  Application  for  Writ  —  Notice  Required  in  Cases  In- 
volving Law  of  Nations. 

Section  754  of  the  Revised  Statutes  provides  as  follows :  "  Appli- 
cation for  writ  of  habeas  corpus  shall  be  made  to  the  court,  or 
justice,  or  judge  authorized  to  issue  the  same,  by  complaint  in 
writing,  signed  by  the  person  for  whose  relief  it  is  intended,  setting 
forth  the  facts  concerning  the  detention  of  the  party  restrained,  in 
whose  custody  he  is  detained,  and  by  virtue  of  what  claim  or 
authority,  if  known.  The  facts  set  forth  in  the  complaint  shall 
be  verified  by  the  oath  of  the  person  making  the  application."  ^ 
In  cases  involving  the  law  of  nations,  where  the  petitioner  is  a 
subject  or  citizen  of  a  foreign  state  and  is  domiciled  therein,  is 
committed  or  confined,  or  in  custody,  by  or  under  the  authority 
or  law  of  any  one  of  the  United  States,  or  process  founded  thereon, 
on  account  of  any  act  done  or  omitted  under  an  alleged  right,  title, 
authority,  privilege,  protection  or  exemption,  claimed  under  the 
commission  or  order  or  sanction  of  any  foreign  state,  or  under  color 
thereof,  the  validity  and  effect  whereof  depend  upon  the  law  of 
nations,  notice  of  said  proceeding  to  be  prescribed  by  the  court, 
or  justice  or  judge  at  the  time  of  granting  said  writ,  shall  be 
served  on  the  Attorney-General  or  other  officer  prosecuting  said 
pleas  of  said  state,  and  due  proof  of  said  service  shall  be  made  to 
the  Court,  or  justice  or  judge  before  hearing.^ 

§  549.   Who  May  Petition  and  Requisites  of  Petition  for  Writ. 

Sections  754,  755,  757,  and  758  of  the  Revised  Statutes  con- 
template a  proceeding  against  some  person  who  has  the  immediate 
custody  of  the  party  detained,  with  the  power  to  produce  the  body 
of  such  party  before  the  court  or  judge,  that  he  may  be  liberated 
if  no  sufficient  reason  is  shown  to  the  contrary.^     The  statute 

§  547.   1  In   re    Thaw,    172    Fed.  ^  Rgv.  Stat.    §  762.    See  also  ex- 

288.  TRADITION,  INTERSTATE  RENDITION. 

§  548.   1  Act  of  Feb.  5,  1867,  ch.  §  549.   »  Wales    v.    Whitney,    114 

28,  14  Stat.  L.  385.        '  U.  S.  564,  29  L.  ed.  277,  5  S.  0.  1050. 

445 


§  549]  HABEAS  CORPUS  [Chap.  XLII 

requires  personal  signature  and  oath  by  the  petitioner ;  but  objec- 
tion must,  of  course,  be  made  on  these  points.^  Notwithstanding 
the  language  of  Section  754,  it  has  been  the  frequent  practice  to  pre- 
sent habeas  corpus  petitions  in  deportation  cases  signed  and  verified 
by  others  than  the  persons  detained.  In  such  cases,  often  because 
of  lack  of  time,  infancy  or  incompetency,  it  will  be  impossible  to 
present  a  petition  signed  and  verified  by  the  person  detained,  and 
the  language  of  Section  760  plainly  contemplates  petitions  so  exe- 
cuted.^ The  language  of  Section  760  seems  to  contemplate  that 
the  petitioner  may  be  one  person  and  the  party  restrained  another. 
A  petition  for  habeas  corpus  by  a  Chinese  person,  ordered  deported, 
which  alleges  that  he  was  not  given  a  fair  and  impartial  hearing, 
but  does  not  specify  wherein  or  in  what  respect  he  was  denied  such 
a  hearing  is  insufficient.^  The  habeas  corpus  acts  do  not  make 
citizenship  a  qualification  for  suing  out  the  writ.^  The  petition 
must  state  facts  and  not  merely  legal  conclusions.®  Facts  duly 
alleged  may  be  taken  to  be  true,  unless  denied  by  the  return,  or 
controlled  by  other  evidence.  But  no  allegation  of  fact  in  the 
petition  can  be  assumed  to  be  admitted,  unless  distinct  and 
unambiguous.'^ 

§  550.  Award  of  Writ. 

Section  755  of  the  Revised  Statutes  provides :  "  The  court,  or 
justice,  or  judge  to  whom  such  application  is  made  shall  forthwith 
award  a  writ  of  habeas  corpus,  unless  it  appears  from  the  petition 
itself  that  the  party  is  not  entitled  thereto.  The  wTit  shall  be 
directed  to  the  person  in  whose  custody  the  party  is  detained."  ^ 

§  551.  Proceedings  on  Allowance  or  Denial  of  Writ. 

The  proceedings  on  a  writ  of  habeas  corpus  in  the  Federal  Courts 
are  not  governed  by  the  laws  of  the  States  on  the  subject,  but  by 

2  Ex  parte  Dunn,  250  Fed.  871.  124,  42  L.  ed.  407,  18  S.  C.  1 ;   Low 

^  United  States  ex  rel.  Funaro  v.  Wah  Sucy  v.  Backus,  225  U.  S.  473, 

Watchom,  164  Fed.  152.  56  L.  cd.  1165,  32  S.  C.  734. 

*  Lee  Leong  v.  United  States,  217  "  Whitten  v.  Tomlinson,  160  U.  S. 

Fed.  48,  133  C.  C.  A.  34  (9th  Cir.).  231,  242,   40  L.  ed.  406,   16  S.  C. 

s  United  States  v.  Crook,  5  Dill.  297 ;    Kohl  v.   Lehlback,   160  U.  S. 

453,  Fed.  Cas.  No.  14891.  293,  40  L.  ed.  432,  16  S.  C.  304. 

"  United   States   ex  rel.  Arnowicz  §  550.    '  Act  of  Feb.  5,  1867,  ch. 

V.  Wilhams,  204  Fed.  844 ;    Craemer  28,  14  Stat.  L.  385. 
V.  State  of  Washington,    108  U.  S. 
446 


Chap.  XLII]  PROCEEDINGS   ON   ALLOWANCE  [§  551 

the  common  law  of  England  as  it  stood  at  the  adoption  of  the 
Constitution,  subject  to  such  alterations  as  Congress  may  see  fit 
to  prescribe.^  Due  process  of  law,  guaranteed  by  the  Fourteenth 
Amendment,  does  not  require  the  State  to  adopt  any  particular 
form  of  procedure,  so  long  as  it  appears  that  the  accused  has  had 
sufficient  notice  of  the  accusation  and  an  adequate  opportunity 
to  defend  himself  in  the  prosecution.^  When  it  appears  to  a  court 
having  jurisdiction  that  the  petitioner  is  restrained  of  his  liberty 
contrary  to  the  Constitution  and  laws  of  the  United  States,  the 
writ  becomes  one  of  right.^  It  is  apparent  from  Section  755  of  the 
Revised  Statutes  that  if  it  appears  from  the  petition  itself  that 
the  relator  is  not  entitled  to  his  discharge,  the  court  should  deny 
his  petition  without  issuing  the  writ.  The  section  only  declares 
the  common  law  practice  in  this  respect.^  The  court  is  not  re- 
quired either  to  award  a  writ,  or  to  issue  an  order  to  the  respond- 
ent to  show  cause.^  If  the  petition  is  tested  by  demurrer  the 
statements  of  fact  made  therein  must  be  taken  as  true,  but  this 
does  not  apply  to  statements  of  mere  conclusions.®  Under  this 
section  it  is  necessary  to  turn  to  the  petition  to  ascertain  the 
petitioner's  right  to  the  writ.^  In  habeas  corpus  proceedings,  the 
court  will  not  consider  the  testimony  or  weight  thereof.  But  it 
may,  and  it  is  its  duty  to  consider  the  manner  of  procuring  testi- 
mony, its  competency  and  legal  admissibility  against  the  petitioner 
and  determine  whether  or  not  he  has  had  a  fair  and  impartial 
trial. ^  The  practice  in  Federal  district  courts,  particularly  where 
Federal  penitentiaries  are  located,  and  where  applications  for  writs 

§551.   »ExparteKame,2Blatchf.  « Choy  Gam  v.  Backus,  223  Fed. 

1,  Fed.  Cas.  No.  7597.  487,  139  C.  C.  A.  35  (9th  Cir.). 

2  Rogers  v.  Peck,   199  U.  S.  435,  ^  Xerlinden   v.   Ames,    184   U.    S. 
50  L.  ed.  256,  26  S.  C.  87.  270,  46  L.   ed.   534,  22  S.  C.  484 ; 

3  Ex  parte  Farley,  40  Fed.  66.  Filer  v.  Steele,  228  Fed.  242 ;    Ham- 
'  In    re    Haskell,    52    Fed.    795 ;      men  v.  Hill,  228  Fed.  999. 

Franks  v.  Mangum,  237  U.  S.  309,  '    » United    States    v.    Quan    Wah, 

59  L.  ed.  969,  35  S.  C.  582.  214    Fed.    462 ;     United    States    v. 

6  Ex  parte  Collins,  151  Fed.  358;  Lou  Chu,  214  Fed.  463;    In  re  Jem 

Erickson  v.  Hodges,   179  Fed.   177,  Yuen,  188  Fed.  351 ;   Ex  parte  Lam 

102  C.  C.  A.  443  (9th  Cir.) ;    Horn  Pui,  217  Fed.  456 ;    Hange  v.  Whit- 

V.   Mitchell,   223   Fed.  549,  Affirmed  field,   209   Fed.   675;    Chin   Gow  v. 

232  Fed.  819,  147  C.  C.  A.  13  (1st  United  States,   208  U.  S.  8,  52  L. 

Cir.) ;    In  re  Boardman,   169  U.  S.  ed.  369,  28  S.  C.  201. 
39,  42  L.  ed.  653,  18  S.  C.  291. 

447 


§  551]  HABEAS    CORPUS  [Chap.  XLll 

of  habeas  corpus  are  very  numerous,  to  make  a  preliminary  deter- 
mination as  to  the  propriety  of  issuing  the  writ  without  the  per- 
sonal appearance  of  the  prisoner  was  held  to  be  not  in  violation 
of  the  statute.^  In  one  case  ^°  writs  of  certiorari  were  aLio  issued 
directing  the  United  States  Commissioner  to  send  up  the  original 
papers  and  a  transcript  of  the  testimony  on  which  the  prisoners 
were  committed. 

§  552.   Time  for  Making  Return. 

Section  756  of  the  Revised  Statutes  provides  as  follows  :  "  Any 
person  to  whom  such  writ  is  directed  shall  make  due  return  there- 
of within  three  days  thereafter,  unless  the  party  be  detained 
beyond  the  distance  of  twenty  miles;  and  if  beyond  that  dis- 
tance and  not  beyond  a  distance  of  a  hundred  miles,  within  ten 
days;  and  if  beyond  the  distance  of  a  hundred  miles,  within 
twenty  days."  ^ 

§  553.  Reasonable  Time  for  Return. 

A  reasonable  time  has  always  been  allowed  for  making  the 
return.^ 

§  554.   Form  of  Returns. 

Section  757  of  the  Revised  Statutes  provides  as  follows: 
"  The  person  to  whom  the  writ  is  directed  shall  certify  to  the  court, 
or  justice,  or  judge  before  whom  it  is  returnable  the  true  cause 
of  the  detention  of  such  party."  ^ 

§  555.  Return  to  Writ. 

If  a  return  is  not  put  in  issue  by  denial  or  demurrer  or  other- 
wise, it  will  be  taken  as  conclusive  of  the  facts  therein  set  forth.^ 
If  a  return  fails  to  show  that  the  prisoner's  caption  and  detention 
were  legal  and  valid  at  the  time  the  writ  was  issued  he  must  be 
discharged.^ 

» Murdock   v.   Pollock,   229   Fed.  §  553.   i  Ex   parte   Baez,    177   U. 

392,  143  C.  C.  A.  512  (8th  Cir.).  S.  378,  44  L.  cd.  813,  20  S.  C.  G73. 

"'Ornelas  v.  Ruiz,  IGl  U.  S.  502,  §554.    »  Act  of  Feb.  5,   1867,  ch. 

40  L.  cd.  787,  16  S.  C.  689.  28,  14  Stat.  L.  385. 

§  552.    '  Act  of  Feb.  5,  1867,  ch.  §  555.    ^  In  re  Lawler,  40  Fed.  233. 

28,  14  Stat.  L.  385.  ^  In  re  Doo  Woon,  18  Fed.  898. 

448 


Chap.  XLII]  SCOPE   OF  TRAVERSE  [§  561 

§  556.   Production  of  Body. 

Section  758  of  the  Revised  Statutes  provides  as  follows :  "  The 
person  making  the  return  shall  at  the  same  time  bring  the  body 
of  the  party  before  the  judge  who  granted  the  writ. 


"  1 


§  557.   Production  of  Body,  Continued. 

A  willful  failure  to  produce  the  body  is  punishable  as  contempt/ 
but  in  practice,  as  where  the  party  has  some  contagious  disease, 
the  production  of  the  body  in  court  is  frequently  dispensed  with.^ 

§  558.   Time  for  Hearing. 

Revised  Statute  §  759  provides  as  follows :  "  When  the  writ  is 
returned,  a  day  shall  be  set  for  the  hearing  of  the  cause,  not  ex- 
ceeding five  days  thereafter,  unless  the  party  petitioning  requests 
a  longer  time."  ^ 

§  559.  Promptness  of  Action. 

The  interest  of  both  the  petitioner  and  the  public  require 
promptness  of  action  in  habeas  corpus  cases.^ 

§  560.  Traverse  of  Return. 

Section  760  of  the  Revised  Statutes  provides  as  follows : 
"  The  petitioner  or  the  party  imprisoned  or  restrained  may  deny 
any  of  the  facts  set  forth  in  the  return,  or  may  allege  any  other 
facts  that  may  be  material  in  the  case.  Said  denials  or  allegations 
shall  be  under  oath.  The  return  and  all  suggestions  made  against 
it  may  be  amended,  by  leave  of  the  court,  or  justice,  or  judge, 
before  or  after  the  same  are  filed,  so  that  thereby  the  material 
facts  may  be  ascertained."  ^ 

§  561.   Scope  of  Traverse. 

The  court  is  not  authorized  to  go  outside  of  an  untraversed 
return  for  the  facts  of  the  case.^ 

§  556.   1  Act  of  Feb.  5,  1867,  ch.  chusetts,  183  U.  S.  138,  46  L.  ed.  120, 

28,  14  Stat.  L.  385.  22  S.  C.  72. 

§  557.   1  Ex  parte  Young,  50  Fed.  §  560.   i  Act  of  Feb.  5,  1887,  ch. 

526.  28,  14  Stat.  L.  385. 

^  United   States   ex   rel.  Schleiter  §  561.   "  Moore  v.  United  States, 

V.  Williams,  203  Fed.  292.  159  Fed.  701,  86  C.  C.  A.  569  (5th 

§  558.   1  Act  of  Feb.  5,  1867,  ch.  Cir.) ;    Haas    v.    Henkel,    166    Fed. 

28,  14  Stat.  L.  385.  -  621. 

§  559.   1  Storti  v.  State  of  Massa- 

voL.  1  —  29  449 


§  562]  HABEAS    CORPUS  [Chap.  XLII 

§  562.   Summary  Hearing  and  Disposal. 

Section  761  of  the  Revised  Statutes  provides  as  follows: 
"  The  court,  or  justice,  or  judge  shall  proceed  in  a  summary  way 
to  determine  the  facts  of  the  case,  by  hearing  the  testimony  and 
arguments,  and  thereupon  to  dispose  of  the  party  as  law  and 
justice  require."  ^ 

§  563.  Procedure  Generally. 

The  mandate  as  to  summary  procedure  is  applicable  to  the 
Supreme  Court  whether  it  is  exercising  its  original  or  appellate 
jurisdiction.^  This  clause  means  not  as  law  and  justice  required 
at  the  time  of  the  arrest,  but  as  law  and  justice  require  at  the  time 
of  the  hearing.^  Under  this  section,  the  court,  on  finding  the 
sentence  of  the  accused  illegal,  may  send  him  back  to  the  trial 
court  for  correction  of  the  sentence.^  It  is  well  settled  that  habeas 
corpus  is  a  civil  and  not  a  criminal  proceeding.^  It  has  been 
held  that  the  doctrine  of  res  adjudicata  does  not  apply  to  habeas 
corpus,^  and  that  a  decision  on  one  writ,  refusing  a  discharge, 
is  no  bar  to  the  issue  of  any  number  of  successive  writs,  by  a  court, 
or  magistrate,  having  jurisdiction.^ 

§  564.   Disposal  of  Party. 

"  The  command  of  the  section  is  *  to  dispose  of  the  party  as  law 
and  justice  require.'  All  the  freedom  of  equity  procedure  is 
thus  prescribed ;  and  substantial  justice,  promptly  administered, 
is  ever  the  rule  in  habeas  corpus."  ^  Therefore,  the  court  is  not 
confined  to  simply  remanding  or  releasing  prisoners,  but  may 
compel  a  proper  and  lawful  disposition  of  them.^  The  writ  will 
be  denied  if  it  is  apparent  that  its  only  result  would  be  to  remand 
the  prisoner  to  custody.^     Under  the  provision  requiring  disposal 

§  562.   '  Act    of     Feb.     5,     1867,  '  In    re    Kopel,     148    Fed.    505. 

ch.  28,  14  Stat.  L.  385.  Contra:     United    States    v.    Chung 

§  563.    '  Storti    v.    Massachusetts,  Shee,  71  Fed.  277. 
183  U.  S.  138, 4G  L.  ed.  120,  22  S.  C.  72.  «  Ex   parte    Kaine,  3    Blatchf .    1, 

2  Oig  Seen  v.   Burnett,   232   Fed.  Fed.  Cas.  No.  7597. 

850,  147  C.  C.  A.  44  (9th  Cir.).  §  564.    i  Storti    v.    Massachusetts, 

3  Bryant  v.  United  States,  214  183  U.  S.  138,  46  L.  ed.  120,  22  S. 
Fed.  51,  130  C.  C.  A.  491  (8th  Cir.).      C.  72;  Ex  parte  Gytl,  210  Fed.  918. 

*  Goldsmith  v.  Valentine,  36  App.  ^  Ex  parte  Gytl,  supra. 

(D.  C.)  63 ;    Cross  v.  Burke,  146  U.  '  In  re  Boardman,   169  U.  S.  39, 

a.  82,  36  L.  cd.  896,  13  S.  C.  22.  42  L.  ed.  653,  18  S.  C.  291. 
450 


Chap.  XLII]  PENDING  APPEAL  [§  566 

"  of  the  party  as  law  and  justice  require",  in  an  application  by  a 
prisoner  for  discharge  on  the  ground  that  his  sentence  was  illegal, 
it  was  held  proper  for  the  court  on  finding  a  defect  in  his  sentence 
to  direct  his  return  to  the  court  in  which  he  was  tried  for  a  correc- 
tion of  the  sentence.'* 

§  565.  Law  of  Nations ;  Notice  to  State  Attorney-General. 

Revised  Statutes  Section  762  provides  as  follows  :  "When  a  writ 
of  habeas  corpus  is  issued  in  the  case  of  any  prisoner  who,  being  a 
subject  or  citizen  of  a  foreign  state  and  domiciled  therein,  is  com- 
mitted, or  confined,  or  in  custody,  by  or  under  the  authority  or 
law  of  any  one  of  the  United  States,  or  process  founded  thereon, 
on  account  of  any  act  done  or  omitted  under  an  alleged  right, 
title,  authority,  privilege,  protection,  or  exemption,  claimed  under 
the  commission  or  order  or  sanction  of  any  foreign  state,  or  under 
color  thereof,  the  validity  and  effect  whereof  depend  upon  the 
law  of  nations,  notice  of  the  said  proceeding,  to  be  prescribed 
by  the  court,  or  justice,  or  judge  at  the  time  of  granting  said  writ, 
shall  be  served  on  the  attorney-general  or  other  officer  prosecuting 
the  pleas  of  said  State,  and  due  proof  of  such  service  shall  be  made 
to  the  court,  or  justice,  or  judge  before  the  hearing."  ^ 

§  566.  Pending  Appeal. 

Pending  an  appeal  from  a  final  decision  declining  to  issue  the 
writ,  the  custody  of  the  prisoner  cannot  be  disturbed ;  but  when 
a  writ  has  been  issued  and  the  prisoner  remanded,  he  may  be  ad- 
mitted to  bail,  under  the  thirty-fourth  rule  of  the  United  States 
Supreme  Court,  pending  the  final  disposition  of  the  appeal.  But 
this  rule  does  not  apply  to  cases  from  the  State  Courts,  which  are 
regulated  by  statute. 

Revised  Statutes  Section  766  provides  as  follows  :  "  Pending  the 
proceedings  or  appeal  in  the  cases  mentioned  in  the  three  preceding 
sections,  and  until  final  judgment  therein,  and  after  final  judg- 
ment of  discharge,  any  proceeding  against  the  person  so  im- 
prisoned or  confined  or  restrained  of  his  liberty,  in  any  State 
court,  or  by  or  under  the  authority  of  any  State,  for  any  matter  so 

*  Bryant  v.  United  States,  214  Fed.  §  565.    i  Act  of  Aug.  29,  1842,  ch. 

61,  130  C.  C.  A.  491  (8th  Cir.).  257,  5  Stat.  L.  539. 

451 


§  566]  HABEAS   CORPUS  [Chap.  XLII 

heard  and  determined,  or  In  process  of  being  heard  and  deter- 
mined, under  such  writ  of  habeas  corpiis,  shall  be  deemed  null 
and  void.  Provided,  That  no  such  appeal  shall  be  had  or  allowed 
after  six  months  from  the  date  of  the  judgment  or  order  complained 
of."  ^  By  a  special  act  of  Congress  it  is  now  provided  that  no 
appeal  in  a  habeas  corpus  case  arising  in  a  State  court  shall  be  al- 
lowed to  the  Supreme  Court  of  the  United  States  unless  the  Fed- 
eral judge  who  heard  the  application  or  a  Justice  of  the  United 
States  Supreme  Court  shall  certify  that  there  is  probable  cause 
for  such  allowance. 

§  567.   Effect  of  Pending  Appeal. 

The  purpose  of  Section  766  of  the  Revised  Statutes  is  to  pre- 
vent the  State  authorities  from  doing  an  act  which  has  been  or  may 
be  declared  by  the  Federal  Courts  to  be  unlawful  in  a  pending  pro- 
ceeding,^ and  from  changing,  to  the  prejudice  of  the  accused,  the 
situation  as  it  was  at  the 'time  the  appeal  was  taken .^  The  bare 
pendency  of  the  appeal  effects  a  stay.^ 

§  566.   1  Act  of  Aug.  29,  1842,  ch.  ^  McKane  v.  Durston,  153  U.  S. 

257,  5  Stat.  L.  539 ;   Act  of  Feb.  5,  684,  38  L.  ed.  867,  14  S.  C.  913. 

1867,  ch.  28, 14  Stat.  L.  385.  Amended  '  Lambert  v.   Barrett,    159  U.   S. 

Mar.  3,  1893,  ch.  226,  27  Stat.  L.  751.  660,  40  L.  ed.  296,  16  S.  C.  135. 

§  567.   1  In  re  Strauss,    126  Fed. 
327,  63  C.  C.  A.  99  (2d  Cir.). 


452 


CHAPTER   XLIII 

REVIEW  OF  JUDGMENTS  IN  CRIMINAL  CASES 

§  5CS.   "Appeal  and  Error"  as  a  Distinct  Branch  of  the  Law. 

§  5G9.   Mode  of  Reviewing  Judgments  in  Criminal  Cases. 

§  570.   Wlio  May  Sue  Out  a  Writ  of  Error. 

§  57L   Writ  of  Error  —  By  Whom  Allowed  —  Bail  Pending  Review. 

§  572.    When  Government  May  Appeal. 

§  573.    When  and  in  Wliat  Court  Is  the  Writ  Reviewable. 

§  574.   What  Constitutes  Reversible  Error. 

§  568.   "  Appeal  and  Error  "  as  a  Distinct  Branch  of  the  Law. 

The  subject  of  appeal  and  error  from  the  judgments  and  decrees 
of  the  courts  of  the  United  States  and  from  the  highest  courts 
of  the  States  is  extensive  and  intricate  and  of  itself  constitutes  a 
separate  branch  of  the  law.  For  this  reason  only  a  general  state- 
ment of  the  law  will  be  found  in  this  chapter,  and  the  reader  is 
referred  to  a  recent  work  by  the  author  ^  for  a  general  guide  on  all 
questions  of  law  relating  to  Federal  appellate  jurisdiction  and 
procedure. 

§  569.  Mode  of  Reviewing  Judgments  in  Criminal  Cases. 

A  judgment  of  conviction  rendered  against  a  defendant  in  a 
criminal  case  in  a  District  Court  of  the  United  States  is  review- 
able only  by  writ  of  error  and  not  by  appeal.^  In  order  to  secure  a 
review  of  such  a  judgment,  a  bill  of  exceptions  duly  and  season- 
ably signed  and  settled  by  the  trial  judge  is  indispensable,^  except 

§  568.   1  ZoUne's  "Federal  Appel-  question.     See  also  Zoline's  "Federal 

late  Jurisdiction  and  Procedure,  with  Appellate  Jurisdiction  and  Procedure, 

Forms."  with    Forms",    Chapt.    II,    §  15,    p. 

§  569.   1  Buessell  v.  United  States,  19,  and  cases  cited, 
decided  April  16,  1919,  by  the  United  ^  Buessell  v.  United  States,  supra; 

States  Circuit  Court  of  Appeals  for  Zoline's    "Federal    Appellate    Juris- 

the  Second  Circuit,  still  unreported,  diction  and  Procedure,  with  Forms", 

opinion    per    Rogers,    J., ^  reviewing  Chapt.  XVII,  "Bill  of  Exceptions." 
the  whole  body  of  the  law  on  this 

453 


§  569]       REVIEW  OF  JUDGMENTS  IN  CRIMINAL  CASES       [Chap.  XLIII 

that  the  vaHdity  of  the  indictment  may  be  reviewed  without  a 
bill  of  exceptions ;  ^  that  is  so  because  no  exceptions  are  required 
to  rulings  on  demurrers  or  any  other  pleading.  The  effect  of  the 
Act  of  September  6,  1916,  was  that  a  mistake  in  choice  of  remedy 
between  appeal  and  error  is  no  longer  fatal  .^  When  that  statute 
was  enacted  and  before  there  were  any  decisions  on  the  subject 
the  author  expressed  the  view  ^  that,  regardless  of  the  liberality 
of  the  statute,  the  reviewing  courts  may  find  themselves  unable 
to  examine  the  merits  of  the  case  by  reason  of  the  form  or  state  of 
the  record.  This  belief  has  recently  been  confirmed  by  the  decision 
of  the  United  States  Circuit  Court  of  Appeals  for  the  Second 
Circuit.^  That  court  so  held  regardless  of  this  statute  and  of 
another  recent  statute  passed  February  26,  1919,  providing  in 
substance  that  on  the  hearing  of  any  case  the  court  shall  give 
judgment  "  after  an  examination  of  the  entire  record  before  the 
court,  without  regard  to  technical  errors,  defects,  or  exceptions, 
which  do  not  affect  the  substantial  rights  of  the  parties." 

§  570.  Who  May  Sue  Out  a  Writ  of  Error. 

The  Government  cannot  seek  to  review  a  judgment  of  acquittal 
in  criminal  cases  and  this  is  so  even  though  the  verdict  was  directed 
by  the  com-t  and  was  in  fact  erroneous.^  A  ruling  by  the  court  is 
as  effective  in  this  respect  as  a  verdict  of  the  jury.^ 

§571.  Writ  of  Error  — By  Whom  Allowed  —  Bail  Pending 
Review. 

The  writ  of  error  may  be  allowed  by  the  trial  judge  or  any  other 
judge  of  the  circuit  in  which  the  trial  took  place,  by  a  judge  of  the 
Court  of  Appeals  or  by  a  Justice  of  the  Supreme  Court  of  the 
United  States,  and  the  writ  may  be  made  a  supersedeas  and  the 
prisoner  admitted  to  bail.     A  petition  for  a  writ  of  error  together 

^  Buessell  v.  United  States,  supra;  ^  Buessell  v.  United  States,  supra. 

Zoline's  "  Federal  Appellate  Jurisdio-  §  570.    ^  United  States  v.  Sanges, 

tion    and    Procedure,    with    Forms",  144  U.  S.  310,  36  L.  ed.  445,  12  S. 

Chapt.  XVII,  §  30,  p.  24G.  C.  609 ;   United  States  v.  Evans,  213 

*  Zoline's  "  Federal  Appellate  Juris-  U.  S.  297,  53  L.  ed.  803. 

diction  and  Procedure,  with  Forms",  ^  United   States   v.   Oppenheimer, 

Chapt.  II,  §  7,  p.  16.  242  U.  S.  85,  61  L.  ed.  161,  37  S.  C. 

''Ibid.     Chapt.  II,  §8,  p.  17.  68. 
454 


Chap.  XLIII]  who  MAY  APPEAL  [§  573 

with  assignment  of  errors  are  pre-requisites  for  the  allowance 
of  a  writ  of  error.^ 

§  572.  When  Government  May  Appeal. 

The  Criminal  Appeals  Act  provides :  "A  writ  of  error  may  be 
taken  by  and  on  behalf  of  the  United  States,  from  the  district 
(or  circuit)  courts  direct  to  the  Supreme  Court  of  the  United  States 
in  all  criminal  cases,  in  the  following  instances,  to-wit :  From  a 
decision  or  judgment  quashing,  setting  aside  or  sustaining  a 
demurrer  to  any  indictment,  or  any  count  thereof,  where  such 
decision  or  judgment  is  based  upon  the  invalidity  or  construction 
of  the  statute  upon  which  the  indictment  is  founded.  From  a 
decision  arresting  a  judgment  of  conviction  for  insufficiency  of 
the  indictment,  where  such  decision  is  based  upon  the  invalidity 
or  construction  of  the  statute  upon  which  the  indictment  is 
founded.  From  the  decision  or  judgment  sustaining  a  special 
plea  in  bar,  when  the  defendant  has  not  been  put  in  jeopardy. 
The  writ  of  error  in  all  such  cases  shall  be  taken  within  thirty  days 
after  the  decision  or  judgment  has  been  rendered  and  shall  be 
diligently  prosecuted  and  shall  have  precedence  over  all  other 
cases.  Pending  the  prosecution  and  determination  of  the  writ  of 
error  in  the  foregoing  instances,  the  defendant  shall  be  admitted 
to  bail  on  his  own  recognizance :  Provided,  That  no  writ  of  error 
shall  be  taken  by  or  allowed  the  United  States  in  any  case  where 
there  has  been  a  verdict  in  favor  of  the  defendant."  ^  Under  this 
Act  it  was  held  that  no  appeal  lies  because  of  a  misinterpretation 
of  the  Act,  or  from  the  decision  of  the  Court  that  the  indictment 
is  bad  in  law.  The  review  is  limited  to  questions  of  law  upon  the 
construction  of  the  indictment  as  made  by  the  Court,  which  con- 
struction, insofar  as  the  facts  are  concerned,  is  conclusive  on  the 
Supreme  Court  .^ 

§  573.  When  and  in  What  Court  Is  the  Writ  Reviewable. 
Where  no  constitutional  questions  are  involved  the  writ  of  error 
must  be  sued  out  from  the  United  States  Circuit  Court  of  Appeals 

§571.  iZoline's   "Federal  Appel-  §572.   i  Act  of  Mar.  2,   1907,  c. 

late  Jurisdiction  and  Procedure,  with  25G4,  34  Stat.  L.  1246. 
Forms",   Chapt.    XV,    "Preliminary  ^  Zoline's  " Federal  Appellate  Juris- 

Steps  for  Securing  Appeal  or  Writ  diction  and  Procedure,  with  Forms", 

of  Error",   §  54,  p.  226. "  Chapt.  V,  §  50,  p.  77. 

455 


§  573]    REVIEW   OF  JUDGMENTS   IN    CRIMINAL   CASES     [Chap.  XLIII 

for  the  proper  district  within  six  months  from  the  date  of  judg- 
ment/ and  the  decision  of  the  United  States  Circuit  Court  of 
Appeals  is  final  and  is  reviewable  only  in  the  United  States  Supreme 
Court  by  a  petition  for  a  writ  of  certiorari.  Application  for  a 
writ  of  certiorari  must  be  made  within  three  months  from  the  date 
of  the  judgment  entered  by  the  United  States  Circuit  Court  of 
Appeals.  When  the  constitutionality  of  a  statute  or  a  substantial 
Federal  question  is  involved  and  was  duly  and  seasonably  raised 
in  the  lower  court,  a  writ  of  error  will  lie  directly  to  the  United 
States  Supreme  Court  from  the  judgment  of  the  District  Court.^ 

§  574.   What  Constitutes  Reversible  Error. 

By  a  reference  to  the  index  of  this  work  the  reader  will  find  clas- 
sified the  instances  of  rulings  which  have  been  held  to  be  or  not  to 
be  reversible  error.  The  index  to  the  several  subjects  should 
also  be  consulted.^ 

§573.   1  Section  128  of  the  Federal  Judicial    Code;     Zoline's    "Federal 

Judicial    Code;      Zoline's    "Federal  Appellate  Jurisdiction  and  Procedure, 

Appellate  Jurisdiction  and  Proced-  with  Forms",- Chapt.  V,  §  36,  p.  70. 
ure,  with  Forms",  Chapt.  VI,  "Juris-  §  574.    ^  See  also  Zoline's  "Appel- 

diction  of  the  Circuit  Court  of  Ap-  late  Jurisdiction  and  Procedure,  with 

peals  of  the  United  States. "     See  also  Forms",  Chapt.  IV,  "What  Consti- 

Chapt.  VIII.,  "Certiorari."  tutes  Reversible  Error." 

2  Section     238     of     the     Federal 


456 


CHAPTER  XLIV 

EXTRADITION 

I.     INTERNATIONAL    EXTRADITION 

§575.   Definition. 

§  576.   Treaty  Making  Power. 

§  577.   A  State  Has  No  Power  of  International  Extradition. 

§  578.   Apart  from  Treaties. 

§  579.   Construction  of  Treaties  and  Statutes. 

§  580.   Statutory  Provisions. 

§  581.   Citizenship. 

§  582.   Place  Where  Crime  Committed. 

§  583.   Offenses  in  General. 

§  584.   Acts  Criminal  by  Laws  of  Both  Countries. 

§  585.    Person  Extradited  Can  Be  Tried  Only  for  Same  Offense. 

§  586.   Political  Offenses. 

§  587.   Requisition. 

§  588.   Sufficiency  of  Evidence.     General  Rule. 

§  589.   Treaty  Provisions  as  to  Sufficient  Evidence. 

§  590.   Hearsay  Evidence. 

§  591.   Defenses.     Generally. 

§  592.   Defenses  of  Insanity  and  Alibi. 

§  593.   Confrontation  with  Witnesses  Not  Required. 

§  594.    Commissioner.     Who  Is  Competent. 

§  595.   Translations  of  Documents. 

§  596.   Continuances. 

§  597.   Magistrates'  Duties. 

§  598.   Complaint  —  Requisites  in  General. 

§  599.   Information  and  Belief. 

§  600.   Variance. 

§  601.   Prior  Rights  of  Trial. 

§  602.   Surrender,  President's  Rights. 

§  603.   Determination  as  to  Surrender  for  Surrendering  Executive. 

§  604.   Motive  of  Prosecution  Immaterial. 

§  605.   Sufficiency  of  Warrant  of  Extradition. 

§  606.   Surrender  Provisions  Not  Necessarily  Reciprocal. 

§  607.  Habeas  Corpus.^ 

457 


§  575]  EXTRADITION  [Chap.  XLIV 

§  608.  Direct  Appeal  to  Supreme  Court. 

§  609.  Surrender  of  Property  Found  in  Accused's  Possession. 

§  610.  Expenses. 

§  611.  Documentary  Evidence. 

§  612.  Documentary  Evidence  —  Continued. 

§  613.  Time  Limited  for  Extradition. 

§  614.  Continuance  of  Provisions. 

§  615.  Care  and  Custody  of  Accused. 

§  616.  Powers  of  Agent  Receiving  Offenders. 

§  617.  Punishment  for  Interfering  with  Agent. 

§  618.  Place  and  Nature  of  Hearing. 

§  619.  Fees  of  Commissioners. 

§  620.  Witnesses'  Fees. 

§  621.  Payment  of  Fees  and  Costs. 

§  622.  Evidence  on  the  Hearing. 

§  623.  How  Fees  and  Costs  Paid. 

§  624.  Delivery  of  Fugitives  as  between  Foreign  Country  and  Philippines. 

§  575.  Definition. 

Extradition  may  be  defined  as  the  surrender  by  one  nation  to 
another  of  an  individual  accused  or  convicted  of  an  offense  out- 
side of  its  own  territory,  and  within  the  territorial  jurisdiction  of 
the  other,  which,  being  competent  to  try  and  punish  him,  demands 
the  surrender.^ 

§  576.  Treaty  Making  Power. 

It  is  only  in  modern  times  that  the  nations  of  the  earth  have 
imposed  upon  themselves  the  obligation  of  delivering  up  fugitives 
from  justice  to  the  states  where  their  crimes  were  committed, 
for  trial  and  punishment.  This  has  been  done  generally  by  treaties 
made  by  one  independent  government  with  another.  Prior  to 
these  treaties,  and  apart  from  them,  there  was  no  well-defined 
obligation  on  one  country  to  deliver  up  such  fugitives  to  another, 
and  though  such  delivery  was  often  made,  it  was  upon  the  principle 
of  comity,  and  within  the  discretion  of  the  government  whose 
action  was  invoked;  and  it  has  never  been  recognized  as  among 
those  obligations  of  one  government  towards  another  which  rests 
upon  established  principles  of  international  law.^     Of  late  most 

§  575.   1  Tcrlinden   v.   Ames,    184  119  U.  S.  407,  411,  30  L.  ed.  425, 

U.  S.  270,  289,  46  L.  ed.  534,  22  S.  C.  7  S.  C.  234 ;  Tucker  v.  Alexandroff, 

484.  183  U.  S.  424,  431,  46  L.  ed.  264,  22 

§  576.   1  United  States  t».Rauscher,  S.  C.  195. 

458 


Chap.  XLIV]  reciprocal  obligations  [§  577 

civilized  powers  have  entered  into  treaties  or  conventions  for  tiie 
mutual  surrender  of  persons  charged  with  the  most  serious  non- 
political  crimes.^  These  treaties  should  be  faithfully  observed, 
and  interpreted  with  a  view  to  fulfill  our  just  obligations  to  other 
powers,  without  sacrificing  the  legal  or  constitutional  rights  of 
the  accused.^  An  extradition  treaty  is  the  supreme  law  of  the 
land,  of  which  the  courts  are  bound  to  take  judicial  notice,  and  to 
enforce  in  any  appropriate  proceeding  the  rights  of  parties  growing 
out  of  the  treaty/  The  right  of  surrender  by  the  United  States 
of  a  citizen  or  subject  of  a  foreign  country  who  has  committed  a 
crime  in  his  own  country  has  no  existence  without,  and  can  only 
be  secured  by  a  treaty  stipulation.^  Under  the  exercise  of  the 
treaty-making  power,  Congress  has  the  right  to  provide  for  the 
return  of  a  fugitive  criminal  to  the  foreign  country  from  which 
he  fled ;  and,  waiving  any  requirement  of  entire  reciprocity  from 
the  foreign  country,  it  may,  by  statute,  without  treaty,  provide 
for  such  return.  This  power  has  been  exercised  by  the  Federal 
government  for  years  without  question.^  But  it  is  the  settled 
policy  of  the  United  States  Government  to  refuse  to  grant  ex- 
tradition except  in  virtue  of  express  stipulations  to  that  effect. 
The  basis  of  such  stipulations  should  be  complete  reciprocity.^  In 
the  United  States,  the  general  opinion  and  practice  have  been  that 
extradition  should  be  declined  in  the  absence  of  a  conventional  or 
legislative  provision.^  The  power  to  surrender  is  included  within 
the  treaty  making  power.  Its  exercise  pertains  to  public  policy 
and  governmental  administration,  is  devolved  on  the  Executive 
authority,  and  the  warrant  of  surrender  is  issued  by  the  Secretary 
of  State  as  the  representative  of  the  President  in  foreign  affairs.^ 

§  577.  A  State  Has  No  Power  of  International  Extradition. 
A  State  has  no  sovereign  power  of  extradition.     It  can  only  be 
granted  under  the  Federal  Constitution  and  statutes.^     No  State 

2  Grin  V.  Shine,  187  U.  S.  181,  47      482,   25  Fed.   Cas.   No.   14932;    Ex 
L.  ed.  130,  23  S.  C.  98.  parte  McCabe,  46  Fed.  363. 

3  Grin  v.  Shine,  supra.  « In  re  Neely,  103  Fed.  626,  628. 
*  United  States  v.  Rauscher,  119  U.            ^6  Opinions  Attorney-General,  85. 

S.  407,  419,  30  L.  ed.  425,  7  S.  C.  234.  «  Terlinden   v.    Ames,    184   U.    S. 

5  Case  of  Jose  Ferreira  dos  Santo,  270,  289,  46  L.  ed.  534,  22  S.  C.  484. 

2  Brock.  493,  7  Fed.  Cas.  No.  4016 ;  » Terhnden  v.  Ames,  supra. 

United  States  v.   Davis,   2  Sumner  §  577.   ^  In  re  Kopel,  148  Fed.  505. 

459 


§  577]  EXTRADITION  [Chap.  XLIV 

can,  without  the  consent  of  Congress,  enter  into  any  agreement  or 
compact,  express  or  implied,  to  dehver  up  fugitives  from  justice 
from  a  foreign  country  who  may  be  found  within  its  Hmits.^ 
Extradition  from  foreign  countries  must  be  negotiated  through 
the  Federal  government  and  not  that  of  a  State,  although  the  de- 
mand may  be  for  a  crime  committed  against  the  laws  of  that 
State .^  It  may  be  noted  that  there  can  be  no  international  treaty 
extradition  to  Porto  Rico  from  the  United  States,  as  by  the 
ratification  of  the  treaty  of  Paris  it  became  territory  of  the  United 
States.^ 

§  578.   Apart  from  Treaties. 

While  a  country  is  under  no  absolute  obligation  to  surrender 
fugitives  accused  of  crime  unless  it  has  contracted  to  do  so,  the 
existence  of  a  treaty  relating  only  to  certain  crimes  does  not 
deprive  either  nation  of  the  right  to  exercise  its  own  discretion 
pursuant  to  its  own  laws  in  cases  not  coming  within  the  terms  of  the 
treaty.^ 

§  579.  Construction  of  Treaties  and  Statutes. 
f^  Like  other  treaties,  extradition  treaties  are  made  a  part  of  the 
supreme  law  of  the  land  by  the  Constitution  which  authorizes 
them,  and  the  courts  are  bound  to  construe  them  like  any  other 
public  law.  While  the  courts  will  give  due  consideration  to  the 
construction  placed  upon  a  treaty  by  the  executive  or  diplomatic 
branches  of  the  government,  the  courts  have  the  duty  to  act 
independently,  and  to  accept  full  responsibility  for  their  own 
construction  of  the  treaty.^  A  construction  of  an  extradition 
treaty  by  the  political  department  of  the  government,  while  not 
conclusive  upon  a  court  called  upon  to  construe  such  a  treaty, 
is  nevertheless  of  much  weight.^  Furthermore,  the  construction 
placed  upon  some  of  the  provisions  of  an  extradition  treaty  by  the 
departments  of  the  foreign   country  with   which  the  treaty  is 

23     Opinions     Attorney-General,  154  Fed.  401,  410,  85  C.  C.  A.  251 

661.  (5th  Cir.). 

'United  States  v.  Rauscher,   119  §579.    '  Ex   parte   Charlton,    185 

U.  S.  407,  30  L.  cd.  425,  7  S.  C.  234.  Fed.  880,  886. 

*  In  re  Kopel,  148  Fed.  505.  ^  Charlton    v.    Kelly,    229    U.    S. 

§  578.  '  Greene  v.  United  States,  447,  468,  57  L.  ed.  1274,  33  S.  C.  945. 
460 


Chap.  XLIV]  STATUTORY   PROVISIONS  [§  580 

made,  whether  executive,  legislative,  or  judicial,  is  not  controlling 
on  our  courts.^  The  United  States  statutes  as  to  extradition 
treaties  and  the  treaties  themselves  are  to  be  read  and  construed 
together.  The  treaty  provisions,  where  they  are  the  later,  control 
when  the  two  are  irreconcilable.^  Where  the  government  has 
dealt  with  an  extradition  treaty  as  subsisting,  and  has  honored 
the  requisition  of  the  foreign  government  for  the  surrender  of 
citizens  of  the  United  States,  the  court  has  not  the  power  to  go 
behind  that  act  and  say  that  the  treaty  has  been  ended. ^  Courts 
are  bound  by  the  existence  of  an  extradition  treaty  to  assume 
that  the  trial  by  the  demanding  country  will  be  fair.^  The 
amending  act  of  June  6,  1900,  providing  for  the  surrender  of 
persons  committing  the  crimes  therein  specified  within  a  foreign 
country  occupied  by  or  under  the  control  of  the  United  States, 
is  constitutional.  Within  the  meaning  of  this  act  Cuba  is  a 
foreign  country.^ 

§  580.   Statutory  Provisions. 

Act  of  Congress  of  August  12, 1848,  ch.  167, 9  Stat.  L.  302,  is  now 
§  5270  of  the  Revised  Statutes,  as  amended  by  the  Act  of  June 
6,  1900,  ch.  793,  31  Stat.  L.  656  (Compl.  Statutes  §  10110).  The 
section  is  as  follows :  "  Whenever  there  is  a  treaty  or  convention 
for  extradition  between  the  Government  of  the  United  States  and 
any  foreign  government,  any  justice  of  the  Supreme  Court, 
circuit  judge,  district  judge,  commissioner,  authorized  so  to  do 
by  any  of  the  courts  of  the  United  States,  or  judge  of  a  court  of 
record  of  general  jurisdiction  of  any  State,  may,  upon  complaint 
made  under  oath,  charging  any  person,  found  within  the  limits 
of  any  State,  district  or  territory,  with  having  committed  within 
the  jurisdiction  of  any  such  foreign  government  any  of  the  crimes 
provided  for  by  such  treaty  or  convention,  issue  his  warrant  for 
the  apprehension  of  the  person  so  charged,  that  he  may  be  brought 
before  such  justice,  judge,  or  commissioner,  to  the  end  that  the 
evidence  of  criminality  may  be  heard  and  considered.     If,  on 

3  Ex  parte  Charlton,  185  Fed.  880.  ^  Ex  parte  Charlton,  supra. 

*  Ex    parte    Charlton,    185    Fed.  ^  Qlucksman  v.  Henkel,  221  U.  S. 

880,  887,  Affirmed  Charlton  v.  KeUy,  508,  55  L.  ed.  830,  31  S.  C.  704. 

229  U.  S.  447,  463,  57  L.  ed.  1274,  '  Neely  v.  Henkel,  ISO  U.  S.  109, 

33  S.  C.  945.                 '  45  L.  ed.  448,  21  S.  C.  302. 

461 


§  580]  EXTRADITION  [Chap.  XLIV 

such  hearing,  he  deems  the  evidence  sufficient  to  sustain  the  charge 
under  the  provisions  of  the  proper  treaty  or  convention,  he  shall 
certify  the  same,  together  with  a  copy  of  all  the  testimony  taken 
before  him,  to  the  Secretary  of  State,  that  a  warrant  may  issue 
upon  the  requisition  of  the  proper  authorities  of  such  foreign 
government,  for  the  surrender  of  such  person,  according  to  the 
stipulations  of  the  treaty  or  convention;  and  he  shall  issue  his 
warrant  for  the  commitment  of  the  person  so  charged  to  the  proper 
jail,  there  to  remain  until  such  surrender  shall  be  made.  Provided, 
That  whenever  any  foreign  country  or  territory,  or  any  part 
thereof,  is  occupied  by  or  under  the  control  of  the  United  States, 
any  person  who  shall  violate  or  who  has  violated,  the  criminal 
laws  in  force  therein,  by  the  commission  of  any  of  the  following 
offenses,  namely:  murder  and  assault  with  intent  to  commit 
murder ;  counterfeiting  or  altering  money,  or  uttering  or  bringing 
into  circulation  counterfeit  or  altered  money;  counterfeiting 
certificates  or  coupons  of  public  indebtedness,  bank  notes,  or  other 
instruments  of  public  credit,  and  the  utterance  or  circulation  of 
the  same ;  forgery  or  altering,  and  uttering  what  is  forged  or 
altered;  embezzlement  or  criminal  malversation  of  the  public 
funds,  committed  by  public  officers,  employees  or  depositaries; 
larceny  or  embezzlement  of  an  amount  not  less  than  one  hundred 
dollars  in  value ;  robbery ;  burglary,  defined  to  be  the  breaking 
and  entering  by  night  time  into  the  house  of  another  person 
with  intent  to  commit  a  felony  therein ;  and  the  act  of  breaking 
and  entering  the  house  or  building  of  another,  whether  in  the  day 
or  night  time,  with  the  intent  to  commit  a  felony  therein;  the 
act  of  entering,  or  of  breaking  and  entering  the  offices  of  the 
Government  and  public  authorities,  or  the  offices  of  banks,  banking 
houses,  savings  banks,  trust  companies,  insurance  or  other  com- 
panies, with  the  intent  to  commit  a  felony  therein;  perjury  or 
the  subornation  of  perjury ;  rape ;  arson ;  piracy  by  the  law  of 
nations ;  murder,  assault  with  intent  to  kill,  and  manslaughter 
committed  on  the  high  seas,  on  board  a  ship  owned  by  or  in  control 
of  citizens  or  residents  of  such  foreign  country  or  territory  and 
not  under  the  flag  of  the  United  States,  or  of  some  other  govern- 
ment; malicious  destruction  of  or  attempt  to  destroy  railways, 
trams,  vessels,  bridges,  dwellings,  public  edifices,  or  other  buildings, 
462 


Chap.  XLIV]  CITIZENSHIP  [§  581 

when  the  act  endangers  human  life,  and  who  shall  depart  or  flee, 
or  who  has  departed  or  fled,  from  justice,  therein  to  the  United 
States,  any  Territory  thereof  or  to  the  District  of  Columbia, 
shall,  when  found  therein,  be  liable  to  arrest  and  detention  by 
the  authorities  of  the  United  States,  and  on  the  written  request 
or  requisition  of  the  military  governor  or  other  chief  executive 
officer  in  control  of  such  foreign  country  or  territory  shall  be 
returned  and  surrendered  as  hereinafter  provided  to  such  authori- 
ties for  trial  under  the  laws  in  force  in  the  place  where  such  offense 
was  committed.  All  the  provisions  of  sections  fifty-two  hundred 
and  seventy  to  fifty-two  hundred  and  seventy-seven  of  this  title, 
so  far  as  applicable,  shall  govern  proceedings  authorized  by  this 
proviso:  Provided  further,  That  such  proceedings  shall  be  had 
before  a  judge  of  the  courts  of  the  United  States  only,  who  shall 
hold  such  person  on  evidence  establishing  probable  cause  that  he 
is  guilty  of  the  offense  charged :  And  provided  further,  That  no 
return  or  surrender  shall  be  made  of  any  person  charged  with  the 
commission  of  any  offense  of  a  political  nature.  If  so  held  such 
person  shall  be  returned  and  surrendered  to  the  authorities  in 
control  of  such  foreign  country  or  territory  on  the  order  of  the 
Secretary  of  State  of  the  United  States,  and  such  authorities 
shall  secure  to  such  a  person  a  fair  and  impartial  trial."  ^  This 
section  is  in  force  in  the  case  of  all  treaties  of  extradition.^ 

§  581.   Citizenship. 

Most  of  the  extradition  treaties  of  the  United  States  expressly 
provide  that  neither  of  the  contracting  parties  shall  be  bound  to 
surrender  its  own  subjects.  Some  of  these  treaties  qualify  this  by 
reserving  the  power  to  surrender  their  citizens  if  in  their  discretion 
it  be  deemed  proper  to  do  so.^  Where  it  is  provided  in  an  extra- 
dition treaty  that  "  neither  of  the  contracting  parties  shall  be 

§  580.   1  Revised  Statutes  §  5270,  C.  945;  Grin  v.  Shine,  187  U.  S.  181, 

amended  June   6,    1900,    c.   793,   31  47  L.  ed.  130,  23  S.  C.  98.     See  also 

Stat.  656;  Revised  Statutes  §§  5270-  Sections  5272  and  5275  Rev.  Stat.; 

5277      are       §§  10118-10123.       ^^ee  United   States  v.  Rauscher,   119  U. 

§§  1674,  10117,  10124,  10125.  S.  407,  423,  30  L.  ed.  425,  7  S.  C. 

2  Ex    parte    Charlton,    185    Fed.  234. 
880,    888;     Charlton   v.    Kelly,    229  §581.   i  See  the  treaty  with  Japan, 

U.  S.  447,  463,  57  L.  ed.  1274,  33  S.  quoted  infra,  this  section. 

463 


§  581]  EXTRADITION  [Chap.  XLIV 

bound  to  deliver  up  its  own  citizens  under  the  stipulations  of  this 
treaty,"  the  United  States  will  not  surrender  one  of  its  citizens.^ 
"  Persons  "  in  an  extradition  treaty  is  construed  by  the  Govern- 
ment of  the  United  States  to  include  citizens  of  this  country.^ 
That  this  interpretation  of  the  word  "  persons  "  is  the  usual  one 
may  be  inferred  from  the  fact  that  in  thirty-one  of  the  thirty-six 
extradition  treaties  made  by  this  government  with  foreign  coun- 
tries, in  which  the  word  "  persons  "  is  used,  there  have  been 
inserted  special  clauses  expressly  excluding,  from  the  operation  of 
such  treaties,  the  citizens  and  subjects  of  such  countries."*  It 
has,  no  doubt,  come  to  be  the  practice  with  a  preponderant  number 
of  nations  to  refuse  to  deliver  its  citizens.  The  beginning  of  the 
exemption  is  traced  to  the  practice  between  France  and  the  Low 
Countries  in  the  eighteenth  century.  Owing  to  the  existence  in 
the  municipal  law  of  many  nations  of  provisions  prohibiting  the 
extradition  of  citizens,  the  United  States  has  in  several  of  its  extradi- 
tion treaties  clauses  exempting  citizens  from  their  obligation.  The 
treaties  in  force  in  1910  may,  therefore,  be  divided  into  two 
classes,  those  which  expressly  exempt  citizens,  and  those  which 
do  not.  Those  which  do  contain  the  limitation  are  by  far  the 
larger  number.  Among  the  treaties  which  provide  for  the  extra- 
dition of  "  persons  ",  without  limitation  or  qualification,  are  the 
following:  With  Great  Britain,  August  9,  1842,  extended  July 
12,  1889,  "United  States  Treaties,"  1910,  pages  650  and  740 ;  with 
France,  November  9,  1843,  supra,  page  526 ;  with  Italy,  February 
8,  1868,  supra,  page  961 ;  with  Venezuela,  August  27,  1860, 
supra,  page  1845;  with  Ecuador,  June  28,  1872,  supra,  page  436; 
with  Dominican  Republic,  February  8,  1867,  supra,  page  403. 
The  treaty  with  Japan  of  April  29,  1886,  page  1025,  contains  a 
qualification  in  these  words :  "  Art.  VII.  Neither  of  the  con- 
tracting parties  shall  be  bound  to  deliver  up  its  own  citizens  or 
subjects  under  the  stipulations  of  this  convention,  but  they  shall 
have  the  power  to  deliver  them  up  if  in  their  discretion  it  be  deemed 
proper  to  do  so."  The  conclusion  reached  by  the  Supreme  Court 
of  the  United  States  is  that  there  is  no  principle  of  international 

2  Ex     parte  McCabe,    46    Fed.      880;     Ncely   t-.    Henkel,    180   U.   S. 

363.  109,  45  L.  ed.  448,  21  S.  C.  302. 

» Ex    parte  Charlton,     185    Fed.            *  Ex  parte  Charlton,  supra. 
464 


Chap.  XLIV]  PLACE    WHERE    CRIME    COMMITTED  [§  582 

law  by  which  citizens  are  excepted  out  of  an  agreement  to  surrender 
"  persons",  where  no  such  exception  is  made  in  the  treaty  itself. 
On  the  contrary,  the  word  "  persons  "  includes  all  persons  when 
not  qualified  as  it  is  in  some  of  the  treaties  between  this  and  other 
nations.  That  this  country  has  made  such  an  exception  in  some 
of  its  conventions  and  not  in  others  demonstrates  that  the  con- 
tracting parties  were  fully  aware  of  the  consequences  unless  there 
was  a  clause  qualifying  the  word  "  persons."  This  interpretation 
has  been  consistently  upheld  by  the  United  States,  and  enforced 
under  the  several  treaties  which  do  not  exempt  citizens.^  While 
a  violation  of  the  extradition  treaty  with  Italy  of  1882  and  1884 
by  that  power  might  render  the  treaty  denounceable  by  the 
United  States,  it  does  not  render  it  void  and  of  no  effect.  It  was 
therefore  held  that  the  refusal  of  Italy  to  surrender  its  nationals 
has  not  had  the  effect  of  abrogating  the  treaty,  but  merely  of 
placing  the  government  in  the  position  of  having  the  rigiit  to 
denounce  it.  The  treaty  with  Italy  has  been  construed  by  the 
Supreme  Court  of  the  United  States,  and  it  was  held  that  ex- 
tradition treaties  need  not  be  reciprocal  and  that  a  citizen  of 
the  United  States  may  be  surrendered  for  trial  to  Italy.^ 

§  582.  Place  Where  Crime  Committed. 

A  clause  in  a  treaty  providing  for  the  extradition  of  persons 
charged  with  crimes  therein  specified  "  committed  within  the 
jurisdiction  of  either  party  "  does  not  contemplate  crimes  com- 
mitted elsewhere  than  within  the  territorial  and  exclusive  juris- 
diction of  the  parties  thereto.^  It  must  appear  therefore,  that  the 
criminal  acts  charged  were  committed  within  the  territorial  juris- 
diction of  the  demanding  country.^  All  vessels  while  upon 
the  high  seas  and  ships  of  war  everywhere  are  within  the  juris- 
diction of  the  nations  to  which  they  belong.^     Foreign  merchant 

B  Charlton  v.  Kelly,  229  U.  S.  447,  General,  281 ;  In  re  Stupp,  11  Blatch. 

466,  467,  57  L.  ed.   1274,  33  S.  C.  124,  23  Fed.  Cas.  No.  13562. 
945.  2  8     Opinions     Attorney-General, 

8  Charlton   v,    Kelly,    229   U.    S.  215 ;    1  Opinions  Attorney-General, 

447,  57  L.  ed.  1274,  33  S.  C.  945,  83;   In  re  Taylor,  118  Fed.  196. 
Affirming    Ex    parte    Charlton,    185  ^  14   Opinions     Attorney-General, 

Fed.  880.  281 ;     United    States    v.    Cooper,    1 

§  582.   1  14     Opinions    Attorney-  Bond,  1,  25  Fed.  Cas.  No.  14865. 
VOL.  1  —  30  465 


§  582]  EXTRADITION  [Chap.  XLIV 

vessels  within  the  territorial  waters  of  the  United  States  are 
within  the  territory  of  the  United  States.^ 

§  583.   Offenses  in  General. 

With  the  exception  of  the  extradition  stipulation  in  the  Jay 
treaty  with  Great  Britain  of  1794,  which  by  express  provision 
expired  in  1806,  and  only  included  murder  and  forgery,  the  first 
extradition  treaty  was  that  with  Great  Britain  of  1842,  which 
made  extraditable  murder  or  assault  with  intent  to  commit 
murder,  piracy,  arson,  robbery,  forgery,  or  the  utterance  of  forged 
paper.  Since  then  the  list  of  offenses  included  in  the  various 
treaties  has  grown  to  include  more  than  thirty  of  varying  degrees 
of  seriousness. 

§  584.   Acts  Criminal  by  Laws  of  Both  Countries. 

The  general  principle  of  international  law  is  that  in  all  cases  of 
extradition  the  act  done  on  account  of  which  extradition  is  de- 
manded must  be  criminal  by  the  laws  of  both  countries.^  That 
principle  is  frequently  expressly  embodied  in  the  treaties.^  The 
crime  need  not  have  the  same  name  in  both  countries.  If  the  act 
in  question  is  criminal  in  both  countries,  and  is  within  the  terms 
of  the  treaty,  nothing  more  is  required.^  It  is  enough  if  the 
particular  variety  of  offense  is  criminal  in  both  jurisdictions.^ 
If  the  offense  charged  is  criminal  by  the  laws  of  the  demanding 
foreign  country  and  by  the  laws  of  the  state  in  which  the  fugitive 
is  found,  it  comes  within  the  treaty  and  is  extraditable.^  The 
court  is  concerned  solely  with  the  question  of  the  charge  of  crime, 
and  that  crime  must  be  one  known  as  a  crime  in  the  place  where 
the  hearing  was  held.^    The  British  treaty  of  1842  provides  that 

Un  re  Newman,  79  Fed.  622.  14,   60  L.   ed.   861,   36  S.   C.   487; 

§  584.   1  Wright  v.  Henkel,  190  U.  Wright  v.  Henkel,  190  U.  S.  40,  60, 

S.  40,  58,  40  L.  ed.  948,  23  S.  C.  61,  40  L.  ed.  948,  23  S.  C.  781. 
781;    United  States  v.  Greene,   146  ^  Wright  j^.  Henkel,  supra;   Bing- 

Fed.  766,  770.  ham  v.  Bradley,  241  U.  S.  511,  60 

2  Wright  ?;.  Henkel,  supra  (British  L.  ed.  1136,  36  S.  C.  634;    Greene 

Treaty  of  1889).  v.  United  States,   154  Fed.   401,  85 

"Greene    v.    United    States,    154  C.  C.  A.  251  (5th  Cir.). 
Fed.    401,    406;     Powell    v.    United  « In    re    Lincoln,    228    Fed.    70, 

States,  206  Fed.  400,   124  C.  C.  A.  Affirmed  241    U.  S.   651,  60  L.   ed. 

282  (6th  Cir.).  1222,  36  S.  C.  721. 

4  Kelly   V.   Griffin,   241   U.   S.   6, 
466 


Chap.  XLIV]  PARTICULAR  OFFENSES  [§  584 

only  upon  sufficient  competent  evidence  to  make  out  a  prima 
facie  case  of  the  crime  charged  in  the  place  where  the  hearing  is 
held  shall  the  defendant  be  held  for  extradition.^  Where  the 
jurisdiction  of  the  Commissioner  is  clear,  and  the  evidence  is 
abundantly  sufficient  to  furnish  reasonable  ground  for  the  belief 
that  the  accused  has  committed  within  the  demanding  country 
a  crime  that  is  an  offense  under  its  laws  as  well  as  under  those  of 
the  state  where  he  was  apprehended,  and  is  covered  by  the  terms 
of  the  treaty,  and  that  he  is  a  fugitive  from  justice,  a  fair  observance 
of  the  obligations  of  the  treaty  requires  that  he  be  surrendered.^ 
Where  the  complaint  properly  charges  an  offense  Included  in  the 
extradition  treaty  and  also  charges  one  that  is  not  included,  the 
court  will  presume  that  the  demanding  country  will  respect  an 
existing  treaty  and  only  try  the  person  surrendered  on  the  offense 
on  which  extradition  is  allowed.^  The  enumeration  of  offenses 
in  most  extradition  treaties  is  so  specific,  and  marked  by  such  a 
clear  line  in  regard  to  the  magnitude  and  importance  of  those 
offenses,  that  they  must  be  interpreted  as  excluding  the  right  of 
extradition  for  any  others.^"  Such  treaties  contemplate  only  such 
acts  as  are,  at  the  date  of  the  treaty,  held  in  both  countries  to 
constitute  the  offense  specified.^^  Crimes  committed  prior  to 
the  making  of  the  treaty  are  included  where  the  language  of  the 
treaty  is  capable  of  a  construction  including  them,  unless  they  are 
expressly  excluded.-^^  If  the  parties  to  an  international  extradition 
treaty  choose  to  construe  it  as  including  a  crime  not  really  covered 
by  it,  the  person  extradited  has  no  more  cause  of  complaint  than 
if  the  parties  included  the  crime  by  a  new  treaty.  They  could  do 
this  and  the  new  treaty  would  be  retroactive.^^  Desertion  is  not 
a  crime  provided  for  by  any  of  our  numerous  extradition  treaties 
with  foreign  nations.^^    One  who  has  been  convicted  in  contuma- 

"  In  re  Lincoln,  supra.  U.  S.  407,  420,  30  L.  ed.  425,  7  S.  C. 

8  Bingham  v.  Bradley,  241    U.  S.  234. 
511,  60  L.  ed.  1136,  36  S.  C.  634;  "In  re  Cross,  43  Fed.  517,  519. 

Glucksman  v.  Henkel,  221  U.  S.  508,  ^^  In  re  Angelo   de   Giacomo,    12 

612,  55  L.  ed.  830,  31  S.  C.  704.  Blatchf.  391,  7  Fed.  Cas.  No.  3747. 

9KeUy   V.    Griffin,  241    U.    S.    6,  i^  Greene   v.    United   States,    154 

60  L.  ed.  861,  36  S.  C.  487;  Bingham  Fed.  401,  409,  85  C.  C.  A.  251  (5th 

V.  Bradley,  241  U.  S.  511,  60  L.  ed.  Cir.). 
1136,  36  S.  C.  634.    .  "  Tucker  v.  Alexandroff,  183  U.  S. 

i«  United  States  v.  Rauscher,  119  424,  430,  46  L.  ed.  264,  22  S.  C.  195. 

467 


§  584]  EXTRADITION  [Chap.  XLIV 

ciam  in  a  foreign  country  is  to  be  regarded,  not  as  convicted,  but 
only  charged  with  the  offense.^'' 

§  585.  Person  Extradited  Can  Be  Tried  Only  for  Same 
Offense. 

The  weight  of  authority  and  sound  principle  are  in  favor  of  the 
proposition  that  a  person  who  has  been  brought  within  the  juris- 
diction of  the  court  by  virtue  of  proceedings  under  an  extradition 
treaty  can  only  be  tried  for  one  of  the  offenses  described  in  that 
treaty,  and  for  the  offense  with  which  he  is  charged  in  the  pro- 
ceedings for  his  extradition,  until  a  reasonable  time  and  oppor- 
tunity have  been  given  him,  after  his  release  or  trial  upon  such 
charge,  to  return  to  the  country  from  whose  asylum  he  had  been 
forcibly  taken  under  those  proceedings.^  The  British  treaty  of 
1842  had  no  express  limitation  of  the  right  of  the  demanding 
country  to  try  a  person  only  for  the  crime  for  which  he  was  ex- 
tradited, and  yet  the  Supreme  Court  held  that  there  was  such  a 
limitation,  and  that  it  was  to  be  found  in  the  "  Manifest  scope 
and  object  of  the  treaty  itself  "  ;  that  there  is  "no  reason  to  doubt 
that  the  fair  purpose  of  the  treaty  is  that  the  person  shall  be  de- 
livered up  to  be  tried  for  that  offense  and  no  other."  ^  At  the 
time  of  the  decision  of  the  Rauscher  case  both  Sections  5272  and 
5273  were  in  existence,  and  the  court  considered  this  was  also  the 
obvious  meaning  of  these  sections,  independently  of  treaty  pro- 
visions. The  supplemental  British  treaty  of  1889  provides 
(Article  III)  that  no  person  extradited  "  shall  be  triable  or  tried  " 
for  any  crime  or  offense,  committed  prior  to  his  extradition,  other 
than  the  offense  for  which  he  was  surrendered,  until  he  shall  have 
had  an  opportunity  of  returning  to  the  country  from  which  he 
was  surrendered.  It  is  held  that  the  absence  of  the  words  "  or 
be  punished  "  in  this  article  does  not  permit  of  such  punishment 
although  these  words  appear  in  similar  provisions  in  other  ex- 
tradition treaties.^     It  is  immaterial  that  the  person  extradited 

"Ex  parte  Fudera,  162  Fed.  .TOl.  U.  S.  407,  422,  423,  30  L.  ed.  425, 

§  585.    1  United  States  t>.  Rauscher,  7  S.  C.  234;   Johnson  v.  Browne,  205 

119  U.  S.   407,    4.30,  30   L.  ed.  425,  IJ.  S.  309,  317,  51  L.  ed.  816,  27  S. 

7  S.  C.  2.34  ;  Johnson  v.  Browne,  205  C.  .539. 

U.  S.  309,  51  L.  ed.  816,  27  S.  C.  539.  =>  Johnson   v.   Browne,   205   U.   S. 

2  United  States  v.  Rauscher,   119  307,  322,  51  L.  ed.  816,  27  S.  C.  539. 

468 


Chap.  XLIV]  TRIAL  [§  585 

has  been  convicted  and  sentenced  for  the  other  offense  prior 
to  his  extradition.^  An  extradition  treaty  cannot  be  evaded  by 
making  a  demand  on  account  of  a  higher  offense  defined  in  the 
treaty,  and  then  only  seeking  a  trial  and  conviction  for  a  minor 
offense  not  found  in  the  treaty.  The  circumstance  that  the  same 
evidence  might  be  sufficient  to  convict  of  the  minor  offense  which 
was  produced  before  the  committing  magistrate  to  support  the 
graver  charge  would  not  justify  this  departure  from  the  principles 
of  the  treaty.^  While  the  escape  of  criminals  is,  of  course,  to  be 
very  greatly  deprecated,  it  is  still  most  important  that  an  extradi- 
tion treaty  between  sovereignties  should  be  construed  in  accord- 
ance with  the  highest  good  faith,  and  that  it  should  not  be  sought 
by  doubtful  construction  of  some  of  its  provisions  to  obtain  the 
extradition  of  a  person  for  one  offense  and  then  punish  him  for 
another  and  different  offense.  Especially  should  this  be  the  case 
where  the  government  surrendering  the  person  has  refused  to 
make  the  surrender  for  the  other  offense  on  the  ground  that  such 
offense  was  not  covered  by  the  treaty.^  The  court  of  the  demand- 
ing state,  therefore,  has  no  jurisdiction  of  the  person  extradited 
for  any  purpose  other  than  that  for  which  he  was  delivered  by  the 
asylum  state  authorities,  unless  the  exercise  of  jurisdiction  is  based 
upon  something  happening  after  the  extradition.^  Certainly,  a 
court  should  not  allow  itself  to  be  made  the  instrument  of  per- 
verting the  process  of  extradition  to  serve  the  purpose  of  a  private 
litigant  who  was  instrumental  in  having  that  process  resorted  to 
with  the  object  of  having  the  extradited  person  subjected  to  a  civil 
liability,  instead  of  being  tried  for  the  crime  with  which  he  was 
charged.  Where  a  defendant  was  extradited  from  Panama  into 
the  Canal  Zone  on  a  criminal  charge,  service  on  him  of  an  order 
commanding  him  to  appear  and  show  cause  why  he  should  not 
be  attached  for  contempt,  made  while  he  was  held  in  jail  as  an 
extradited  prisoner,  furnished  no  basis  for  an  adjudication  in 
contempt.^    On  the  illegal  rearrest  of  a    person    extradited    on 

^  Johnson  v.   Browne,   205   U.   S.  ^  Smith  v.   Government  of  Canal 

307,  309,  51  L.  ed.  816,  27  S.  C.  539.  Zone,  249  Fed.  273,  161  C.  C.  A.  281 

5  United  States  ;;.  Rauscher,  119  U.  (5th  Cir.). 
S.  407,  432,  30  L.  ed.  425,  7  S.  C.  234.  »  Smith  v.  Government  of  Canal 

« Johnson  v.   Browne,   205   U.   S.  Zone,   249  Fed.   273,    161   C.   C.  A. 

309,  321,  51  L.  ed.  816^  27  S.  C.  539  281  (5th  Cir.). 

469 


§  585]  EXTRADITION  [Chap.  XLIV 

another  charge  before  giving  him  an  opportunity  to  return  to  the 
country  from  which  he  was  surrendered,  his  primary  recourse  is 
in  the  courts.  He  may  either  apply  to  the  Federal  Courts  for  a 
writ  of  habeas  corpus,  or  interpose  the  alleged  irregularity  of  his 
arrest  as  a  matter  of  defense  on  the  trial  of  his  case  in  the  State 
court. ^  The  accused  is  tried  for  the  same  offense  when  he  is 
tried  for  the  same  acts  and  on  the  same  charge  set  out  in  the  demand 
and  shown  by  the  evidence  presented  to  the  commissioner.^" 

§  586.  Political  Offenses. 

It  is  a  recognized  principle  that  nations  will  not,  even  irre- 
spective of  treaty  provisions  to  that  effect,  surrender  fugitives 
for  political  offenses.^  Emigrants  and  exiles  for  causes  of 
political  difference  at  home  are  entitled  to  asylum  in  this  country.^ 
In  many  extradition  treaties  there  is  an  express  exclusion  of  the 
right  to  demand  extradition  for  political  offenses,  and  in  none  of 
them  is  this  class  of  offenses  mentioned  as  being  the  foundation, 
of  extradition  proceedings.^  Treaties  frequently  provide  that  a 
fugitive  shall  not  be  extradited  for  an  act  or  offense  connected 
with  a  political  offense.^  Under  this  section  and  an  extradition 
treaty  which  provides  that  its  provisions  "  shall  not  apply  to 
any  crime  or  offense  of  a  political  character",  the  committing 
magistrate  has  jurisdiction,  and  it  is  his  duty,  to  determine  whether 
the  offense  charged  is  political  and  not  subject  to  extradition.^ 
The  British  supplemental  treaty  of  1889  provides  (Article  II) 
that  a  fugitive  criminal  shall  not  be  surrendered  for  an  offense 
of  a  political  character  or  if  he  proves  that  the  requisition  for 
his  surrender  has  been  made  with  a  view  to  try  or  punish  him  for 
an  offense  of  a  political  character.  No  person  surrendered  shall 
be  triable  or  tried,  or  be  punished  for  any  political  crime  or 
offense,  or  for  any  act  connected  therewith,  committed  previously 
to  his  extradition.     If  any  question  arises  as  to  whether  a  case 

»23   Opinions    Attorney-General,  ^  7  Opinions  Attorney-General,  537. 

604.  '  United  States  v.  Rauscher,    119 

»»  Greene  v.  United  States,  154  Fed.  U.  S.  407,  420,  30  L.  ed.  425,  7  S.  C. 

401,  406,  85  C.  C.  A.  251  (5th  Cir.).  234. 

§  586.    >  British        Prisoners,        1  Hn  re  Ezeta,  62  Fed.  972,  999. 

Woodb.  &  M.  66,  21  Fed.  Gas.  No.  » In  re  Ezeta,  62  Fed.  972. 

12734. 

470 


Chap.  XLIV]  requisition  [§  587 

comes  within  the  provisions  of  the  article,  the  decision  of  the 
authorities  of  the  government  in  whose  jurisdiction  the  fugitive 
shall  be  at  the  time  is  final.  The  question  whether  a  demanding 
country  may  be  trusted  to  carry  out  its  treaty  obligations  not  to 
try  or  punish  the  person  extradited  for  a  political  offense  is  one  for 
the  Secretary  of  State.^ 

§  587.   Requisition. 

All  demands  for  international  extradition  must  emanate  from 
the  supreme  political  authority  of  the  demanding  state.^  With- 
out such  a  demand  upon  the  executive  of  the  country  in  which 
the  fugitive  is  found  there  can  be  no  surrender.^  No  prior  demand 
by  the  foreign  government  for  the  return  of  the  accused  is  neces- 
sary to  the  validity  of  the  proceedings  before  the  commissioner/ 
though  the  demand  of  the  foreign  government  must  be  made  to 
appear  to  this  government  some  time  or  somewhere  in  the  pro- 
ceedings before  their  consummation  by  the  executive.'*  A  certifi- 
cate of  the  Secretary  of  State  that  application  for  the  extradition 
of  the  person  named  has  been  made  by  the  foreign  government  is 
not  necessary,  under  this  section,  to  the  issuance  of  a  warrant  of 
arrest,  even  where,  as  in  the  case  of  Russia,  the  treaty  provides 
for  such  certificate.^  The  word  "  demand  "  need  not  appear  in  a 
"**  formal  demand  "  required  by  a  treaty.  "  Request  "  would 
amount  to  a  demand.^  If  the  demanding  government  has  at 
some  time  either  preceding  the  accused's  arrest,  or  before  the  ex- 
piration of  the  time  provided  in  the  treaty,  formally  placed  before 
our  government  a  demand  for  extradition,  and  the  Secretary  of 
State's  mandate  has  issued  thereon,  the  foreign  government 
cannot  again  be  required  to  make  a  demand.^     It  is  not  necessary 

8  In  re  Lincoln,  228  Fed.  70.  ^  Ex  parte  Schorer,  197  Fed.  67, 

§  587.   1  7  Opinions  Attorney-Gen-  70;    Grin  v.  Shine,  187  U.  S.  181,  47 

eral,  6.  L.  ed.  130,  23  S.  C.  98 ;   8  Opinions 

2  8     Opinions     Attorney-General,  Attorney-General,   240 ;    4  Opinions 

240,  Attorney-General,  201. 

« Ex  parte  Zentner,  188  Fed.  344 ;  » In  re   Schlippenbach,    164   Fed. 

Benson  v.  McMahon,  127  U.  S.  457,  783 ;    Grin  v.   Shine,    187  U.  S.  181, 

460,  32  L.  ed.  234,  8  S.  C.   1240 ;  47  L.  ed.  130,  23  S.  C.  98. 
Grin  v.  Shine,   187  U.  S.   181,   193,  « Ex    parte    Charlton,    185    Fed. 

47  L.  ed.  130,  23  S.  G-  98;    In  re  880,  889. 
Schlippenbach,  164  Fed.  783.  ^Ex  parte  Charlton,  supra. 

471 


§  587]  EXTRADITION  [Chap.  XLIV 

that,  in  addition  to  this  requisition,  the  foreign  government  should 
make  a  formal  demand  before  the  person  arrested  may  be  re- 
moved from  the  asylum  country.^  The  requisition  for  extradition 
from  the  foreign  government  should  properly  precede  the  issue 
of  the  Secretary  of  State's  certificate.^  Construed  in  the  light 
of  the  original  and  supplementary  conventions  with  Italy  and 
of  this  section,  it  is  not  obligatory  that  the  "  formal  demand  " 
referred  to  in  the  supplementary  treaty  of  1884  should  be  proven 
in  the  preliminary  proceeding  within  forty  days  after  the  arrest.^** 
By  this  section,  an  alleged  fugitive  from  justice  may  be  arrested 
upon  complaint,  regardless  of  whether  a  requisition  or  demand 
has  been  made  on  this  government.  Only  the  surrender  of  the 
accused  is  dependent  upon  the  requisition  of  the  foreign  govern- 
ment. The  warrant  for  the  surrender  is  issued  by  the  Secretary 
of  State.^^  An  arrest  may  be  made,  not  necessarily  pursuant  to 
a  formal  requisition  of  the  Italian  government,  but  upon  the  com- 
plaint of  the  vice  consul,  Italy's  representative  in  this  country .^^ 
It  is  not  necessary  to  produce  before  the  commissioner  any  warrant 
or  equivalent  of  a  warrant  of  any  tribunal  of  the  demanding 
country,  even  should  the  treaty  involved  require  the  production 
of  such  warrant.  By  Section  5270  Congress  has  intentionally 
waived  such  treaty  requirement.^^ 

§  588.   Sufficiency  of  Evidence.     General  Rule. 

Congress  has  a  perfect  right  to  provide  for  the  extradition  of 
criminals  in  its  own  way,  with  or  without  a  treaty  to  that  effect, 
and  to  declare  that  foreign  criminals  shall  be  surrendered  upon 
such  proofs  of  criminality  as  it  may  judge  sufficient.^  The 
evidence  sufficient  to  warrant  the  committing  magistrate  in  hold- 
ing the  accused  for  trial  must  be  such  as,  according  to  the  law  of 
the  State  in  which  the  accused  is  apprehended,  would  be  sufficient 

8  Ex  parte  Charlton,  185  Fed.  880.  i'  Ex  parte  Schorer,  197  Fed.  67  ; 

»  Ex  parte  Charlton,  185  Fed.  880,  Grin  v.  Shine,  187  U.  S.  181,  191,  47 

888.  L.  ed.  130,  23  S.  C.  98. 

'«  Charlton    v.    Kelly,    229    U.    S.  §  588.   i  Charlton  v.  Kelly,  229  U. 

447,  404,  ,57  L.  ed.  1274,  33  S.  C.  945.  S.  447,  4G4,  57  L.  ed.  1274,  33  S.  C. 

"  Ex  parte  Charlton,   sujrra.  945 ;    Grin  v.  Shine,   187  U.  S.  181, 

'2  Ex    parte    Charlton,    185    Fed.  191,  47  L.  ed.  130,  23  S.  C.  98 ;  Castro 

880,    887.  «;.  De  Uriarte,  16  Fed.  93. 
472 


Chap.  XLIV]  SUFFICIENCY   OF   EVIDENCE  [§  589 

to  commit  him  for  trial.-  If  it  satisfies  this  requirement,  it  may  be 
circumstantial.^  It  is  sufficient  if  the  accused  is  held  on  com- 
petent legal  evidence,  and  if  probable  cause  exists  for  believing 
him  guilty  of  the  offense  charged.  The  evidence  need  not  be  con- 
clusive, nor  must  the  commissioner  who  hears  the  proceedings  be 
absolutely  convinced  of  the  defendant's  guilt  before  exercising  the 
power  to  commit  him."*  Such  evidence  must  be  produced  as 
shows,  first,  that  a  crime  was  committed  in  the  demanding  country, 
and,  second,  that  there  is  at  least  reasonable  ground  to  believe 
that  the  person  sought  to  be  extradited  is  guilty  of  the  offense 
charged.^  The  commissioner  is  not  obliged  to  make  extended 
inquiry  as  to  the  scope  of  the  criminal  jurisprudence  of  the  demand- 
ing country,  but  is  by  the  statute  limited  to  determining  whether 
there  is  any  sufficient  evidence  of  criminality  to  justify  holding  the 
accused  for  the  particular  offense,  as  we  understand  that  offense 
by  its  description  in  the  treaty  and  our  laws.^  Evidence  justify- 
ing a  committing  magistrate  in  holding  the  accused  by  imprison- 
ment or  by  bail  to  await  subsequent  proceedings  is  sufficient.^ 
There  is  not,  and  cannot  well  be,  any  uniform  rule  determining 
how  far  an  examining  magistrate  should  hear  the  witnesses  pro- 
duced by  an  accused  person  in  an  extradition  proceeding.^ 

§  589.  Treaty  Provisions  as  to  Sufficient  Evidence. 

A  provision  requiring  that  a  surrender  shall  be  made  "  upon 
such  evidence  of  criminality  as,  according  to  the  laws  of  the  place 
where  the  fugitive  or  person  so  charged  shall  be  found,  would 
justify  his  or  her  apprehension  and  commitment,  if  the  crime  had 
been  there  committed",  is  common  to  many  treaties.  Congress, 
by  Section  5270,  has,  in  aid  of  such  treaties,  prescribed  the  pro- 
cedure upon  such  a  hearing.^  Where  an  extradition  treaty  pro- 
vides that  the  surrender  shall  only  be  made  "  upon  such  evidence 
of  criminality  as,  according  to  the  laws  of  the  place  where  the 

2  Ex  parte  Charlton,  185  Fed.  880.  ^  Ex  parte  Glaser,  176  Fed.  702, 

3  In  re  Urzua,  188  Fed.  540.  100  C.  C.  A.  254  (2d  Cir.) ;    Benson 
<  United  States  v.  Piaza,  133  Fed.      v.  McMahon,   127  U.  S.  457,  32  L. 

998 ;   Ornelas  v.  Ruiz,  161  U.  S.  502,  ed.  234,  8  S.  C.  1240. 

40  L.  ed.  787,  16  S.  C.  689.  «  Charlton  v.  Kelly,  229  U.  S.  447, 

5  Ex    parte    La    Page,    216    Fed.  57  L.  ed.  1274,  33  S.  C.  945. 
256.                                      ^  §  589.   1  Charlton  v.  Kelly,  229  U. 

« In  re  Schorer,  197  Fed.  67,  79.  S.  447,  57  L.  ed.  1274,  33  S.  C.  945. 

473 


§  589]  EXTRADITION  [Chap.  XLIV 

fugitive  or  person  so  charged  shall  be  found,  would  justify  his 
apprehension  and  commitment  for  trial  if  the  crime  or  offense  had 
there  been  committed",  a  person  whose  surrender  is  demanded 
from  the  government  and  who  is  arrested  in  one  of  the  States 
cannot  be  delivered  up  except  upon  such  evidence  of  criminality 
as  under  the  laws  of  that  State  would  justify  his  apprehension 
and  commitment  for  trial  if  the  crime  had  there  been  committed.^ 
Under  such  a  treaty  provision  and  the  provisions  of  Section  5270, 
the  proceeding  before  the  committing  magistrate  is  not  to  be 
regarded  as  in  the  nature  of  a  final  trial  by  which  the  prisoner  could 
be  convicted  or  acquitted  of  the  crime  charged  against  him,  but 
rather  of  the  character  of  those  preliminary  examinations  which 
take  place  every  day  in  this  country  before  an  examining  or  com- 
mitting magistrate  for  the  purpose  of  determining  whether  a 
case  is  made  out  which  will  justify  the  holding  of  the  accused, 
either  by  imprisonment  or  by  bail,  to  ultimately  answer  to  an 
indictment,  or  other  proceeding,  in  which  he  shall  be  finally  tried 
upon  the  charge  against  him.^ 

§  590.   Hearsay  Evidence. 

Mere  hearsay  evidence,  upon  which  the  accused  could  not  have 
been  committed  for  trial  in  this  country,  if  the  crime  had  been 
committed  here,  will  not  warrant  the  extradition  for  murder  to 
a  country  whose  treaty  expressly  provides  that  it  shall  be  upon 
evidence  which  would  justify  commitment  for  trial  if  the  crime  had 
been  committed  here.^ 

§  591.  Defenses.    Generally. 

Persons  charged  with  crime  in  foreign  countries,  who  have 
taken  refuge  here,  are  entitled  to  the  same  defenses  as  others 
accused  of  crime  within  our  own  jurisdiction.^ 

§  592.   Defenses  of  Insanity  and  Alibi. 

Upon  extradition  proceedings,  an  inquiry  into  the  present  sanity 
of  the  person  arrested  is  improper.     The  state  or  kingdom  whose 

2  Pettit  ;;.  Walshe,  194  U.  S.  205,  ed.    234,    8    S.    C.    1240    (Mexican 

48  L.  ed.  938,  24  8.  C.  657.  treaty) ;    In  re  Wadge,  15  Fed.  864. 

»  Charlton    v.    Kelly,  229    U.    S.  §  590.   i  Ex    parte    Fudera,     162 

447,  57  L.  ed.   1274,  33  S.  C.  945  Fed.  591. 

(Italian    treaty) ;     Benson    v.    Mo-  §  591.   » Grin    v.    Shine,    187    U. 

Mahon,   127  U.  S.  457,  462,  32  L.  S.  181,  47  L.  ed.  130,  23  S.  C.  98. 
474 


Chap.  XLIV]       COMMISSIONER.       WHO    IS    COMPETENT  [§  594 

laws  have  been  violated,  and  whose  duty  it  is  to  vindicate  them, 
is  the  only  authority  to  make  this  investigation,  to  be  instituted 
by  them  preliminary  to  the  trial  upon  the  merits.^  In  international 
extradition  proceedings  evidence  of  the  accused's  insanity  at  the 
time  of  the  commission  of  the  offense  is  inadmissible.^  This  is  a 
defense  which  should  be  heard  at  the  time  of  the  trial,  or  by  a 
preliminary  hearing  in  the  jurisdiction  of  the  crime,  if  so  provided 
for  by  its  laws.^  Testimony  tending  to  show  an  alibi  may  appar- 
ently be  considered  by  the  commissioner ."^ 

§  593.  Confrontation  with  Witnesses  Not  Required. 

The  provision  of  the  Sixth  Amendment,  requiring  confrontation 
with  the  witnesses,  does  not  apply  to  persons  extradited  under 
treaties  with  foreign  countries,  whose  laws  may  be  entirely  different 
from  ours ;  ^  nor  does  the  provision  of  the  Fifth  Amendment 
requiring  the  presentment  or  indictment  of  a  grand  jury.^ 

§  594.  Commissioner.    Who  Is  Competent. 

The  commissioner  or  judicial  officer  referred  to  in  this  section  is 
necessarily  one  acting  as  such  within  the  State  in  which  the  accused 
was  found  and  arrested.  Therefore,  a  commissioner  has  no  power 
to  issue  a  warrant  for  international  extradition  under  which  a 
marshal  in  another  State  can  arrest  the  accused  and  deliver 
him  in  another  State  before  the  commissioner  issuing  the  warrant, 
without  a  previous  examination  being  had  before  some  judge  or 
magistrate  authorized  by  the  acts  of  Congress  to  act  in  extradition 
matters  and  sitting  in  the  State  where  the  accused  is  found  and 
arrested.^  The  only  qualification  required  of  a  commissioner  to 
act  in  extradition  cases  is  that  suggested  by  this  section,  that  he 
shall  be  "  authorized  so  to  do  by  any  of  the  courts  of  the  United 
States."  This  grant  of  power  to  the  courts  does  not  render  the 
section  unconstitutional.^  A  commissioner  appointed  by  a 
district  court  may  examine  and  issue  a  warrant  for  commitment 

§  592.   1  Ex  parte  Charlton,    185  §  593.   ^  Ex    parte     La     Mantia, 

Fed.  880.  206  Fed.  330. 

2  Ex  parte  Charlton,  supra.  ^  Ex  parte  La  Mantia,  supra. 

3  Charlton  v.  KeUy,  229  U.  S.  §594.  ^  Pettit  v.  Walshe,  194 
447,  57  L.  ed.  1274,  33  S.  C.  945.  U.  S.  205,  48  L.  ed.  938,  24  S.  C.  657. 

<  Powell  V.  United  States,  206  Fed.  ^  Rice  v.  Ames,  180  U.  S.  371,  378, 

400,  404,  124  C.  C.  A.  282  (6th  Cir.).      45  L.  ed.  577,  21  S.  C.  406. 

475 


§  594]  EXTRADITION  [Chap.  XLIV 

under  this  section.^  It  is  sufficient  if  the  commissioner  before 
whom  the  accused  is  to  appear  is  specially  authorized  to  act  in 
extradition  cases  on  the  day  the  warrant  for  arrest  is  issued.^ 
The  District  Judge  may  make  the  warrant  returnable  before  a 
specified  commissioner  specially  designated  to  act  in  extradition 
cases. ^  The  complaint  may  be  sworn  to  before  any  United  States 
Commissioner.  It  is  not  necessary  that  he  should  be  specially 
authorized  to  act  in  extradition  proceedings.® 

§  595.  Translations  of  Documents. 

A  commissioner  should  decline  to  proceed  with  the  inquiry 
until  translations  of  the  papers  containing  the  charges  are  pro- 
duced before  him.^ 

§  596.   Continuances. 

Continuances  of  the  examination  may  be  granted  in  the  com- 
missioner's discretion ;  he  is  not  controlled  by  a  State  statute 
limiting  such  continuances  to  ten  days.^  Bail  will  not  ordinarily 
be  granted,  in  cases  of  foreign  extradition,  though  that  relief  may 
be  extended  in  special  circumstances.^  The  power  of  a  Federal 
Circuit  Court  to  admit  to  bail  in  such  cases  exists  independently 
of  statute ;  but  it  should  be  exercised  only  under  the  most  pressing 
circumstances.  Where  the  plaintiff  in  an  action  in  New  York 
involving  his  whole  fortune  was  arrested  on  an  extradition  warrant 
from  Canada  the  day  before  the  trial  of  his  case  was  to  begin ; 
at  the  instance  of  the  adverse  party,  the  hardship  was  held  to  be 
such  that  the  court  was  justified  in  admitting  him  to  bail  until 
the' trial  of  his  case  could  be  completed.^ 

§  597.   Magistrates'  Duties. 

The  committing  magistrate  has  no  concern  with  what  transpired 
between  the  foreign  government  and  our  own  preceding  or  subse- 

» In  re  Grin,  112  Fed.  790.  In  re   Macdonnell,    11   Blatchf.   79, 

«  Grin  v.  Shine,  187  U.  S.  181,  47  16  Fed.  Gas.  No.  8771 ;  In  re  Ludwig, 

L.  ed.  130,  23  S.  C.  98.  32  Fed.  774. 

s  Grin  v.  Shine,  supra-  ^  Wright  v.  Henkel,  190  U.  S.  40, 

» Ibid.  63,  40  L.  ed.  948,  23  S.  C.  781.     And 

§  595.   1  21     Opinions     Attorney-  see  Pettit  v.  Walshe,  194  U.  S.  205, 

General,  428.  48  L.  ed.  938,  24  S.  C.  657. 

§  596.   '  Rice  v.  Ames,  180  U.  S.  » In  re  Mitchell,  171  Fed.  289. 

371,  45  L.  cd.  577,  21  S.  C.  40G ; 
47G 


Chap.  XLIV]       COMPLAINT  —  REQUISITES    IN   GENERAL  [§  598 

quent  to  the  issuing  of  the  warrant  or  certificate  for  surrender. 
His  duty  is  confined  to  determining :  First,  whether  the  warrant 
or  certificate  has  been  issued ;  second,  whether  the  offense  charged 
against  the  accused  is  extraditable  under  the  treaty ;  third,  whether 
the  person  brought  before  him  is  the  one  accused  of  the  crime; 
and,  fourth,  whether  there  is  a  probable  cause  for  holding  the  ac- 
cused for  trial.^  Under  Section  5270  any  one  of  the  judicial  officers 
named  therein  may,  upon  complaint,  charging  one  of  the  crimes 
named  in  the  treaty,  issue  his  warrant  of  arrest  and  hear  the  evi- 
dence of  criminality.  This  done,  his  duty  is,  if  he  deems  the 
evidence  sufficient  to  hold  the  accused  for  extradition,  to  commit 
him  to  jail,  and  to  certify  his  conclusion,  with  the  evidence,  to 
the  Secretary  of  State,  who  may  then,  "  upon  the  requisition  of 
the  proper  authorities  of  such  foreign  government,  issue  his 
warrant  for  the  surrender  of  the  accused."  ^  It  is  sufficient  if  the 
warrant  or  certificate  for  surrender  be  exhibited  to  the  committing 
magistrate  between  the  arrest  and  the  final  hearing.^ 

§  598.   Complaint  —  Requisites  in  General. 

The  rule  that  the  ordinary  technicalities  of  criminal  proceedings 
are  applicable  to  proceedings  in  extradition  only  to  a  limited 
extent  applies  to  complaints.^  Under  this  section  a  sufficient 
complaint  on  oath  is  essential  to  the  jurisdiction,  and  a  warrant 
issued  without  it  is  void.^  In  a  complaint  in  proceedings  for  ex- 
tradition the  particularity  of  an  indictment  is  not  required  if  a 
crime  within  the  treaty  is  substantially  charged.^  If  the  com- 
plaint intelligently  describes  and  identifies  the  offense,  and  if  the 
offense  so  described  is  punishable  by  the  laws  of  both  countries, 
and  if  by  any  name  it  is  included  in  the  extradition  treaty,  that 
is  enough.''     It  is  sufficient  if  it  conforms  to  the  requirements  of  a 

§  597.   1  Ex  parte   Charlton,    185  States  v.  Greene,  146  Fed.  766,  770 ; 

Fed.  880.  United  States  v.  Piaza,  133  Fed.  998. 

2  Rev.  Stat.  §§  5272,  5273;  Charl-  ^  Ex  parte  McCabe,  46  Fed.  363. 
ton  V.  Kelly,  229  U.  S.  447,  463,  57  ^  Ex  parte  Zentner,  188  Fed.  344 ; 
L.  ed.  1274,  33  S.  C.  945.  Ex  parte  Dinehart,  188  Fed.  858. 

3  Ex  parte  Charlton,  185  Fed.  880,  ^  Powell  v.  United  States,  206 
888.  Fed.  400,  124  C.  C.  A.  282  (6th  Cir.) ; 

§  598.   1  Wright    v.    Henkel,    190  Yordi  v.  Nolte,  215  U.  S.  227,  230, 

U.  S.  40,  57,  40  L.  ed.  948,  23  S.  C.  54  L.  ed.  170,  30  S.  C.  90 ;   Ex  parte 

781 ;    Grin  v.  Shine,  187  U-  S.  181,  Sternaman,  77  Fed.  595,  597. 
47  L.  ed.  130,  23  S.  C.  98;   United 

477 


§  598]  EXTRADITION  [Chap.  XLIV 

preliminary  complaint  under  the  local  law  where  the  accused  is 
found.^  The  record  and  depositions  from  the  demanding  country- 
need  not  be  actually  fastened  to  the  complaint.®  It  is  advisable 
that  certified  copies  of  the  foreign  complaint  and  warrant  be 
attached  to  and  made  a  permanent  part  of  the  complaint;  but 
it  is  sufficient  if  those  documents,  alleging  positively  the  accused's 
guilt,  are  presented  to  the  commissioner  with  the  complaint,  and 
if  depositions  showing  probable  cause  are  produced  at  the  hearing.^ 

§  599.  Information  and  Belief. 

The  complaint  may,  in  some  instances,  be  upon  information  and 
belief,^  but  some  attempt  must  be  made  to  set  forth  the  sources 
of  information  or  the  grounds  of  affiant's  belief,  otherwise  the 
complaint  will  be  bad.^  A  complaint,  however,  need  not  be  made 
on  the  complainant's  personal  knowledge  if  he  annex  to  it  a  copy 
of  the  indictment  found  in  the  foreign  country,  or  the  deposition 
of  a  witness  having  personal  knowledge  of  the  facts,  taken  under 
the  statute.^  A  complaint  upon  information  and  belief,  but 
setting  forth  that  it  was  made  by  the  authority  of,  and  at  the 
request  of,  the  British  Columbia  officials,  and  that  the  information 
upon  which  it  was  based  was  communicated  to  the  complainant, 
the  British  vice-consul  at  Detroit,  by  those  officials,  was  held 
sufficient.^ 

§  600.  Variance. 

If  an  extraditable  crime  under  the  law  of  the  State  where  the 
accused  is  found  is  sufficiently  charged,  the  effect  of  variance 
between  complaint  and  proof  is  to  be  decided  on  general  principles, 
irrespective  of  the  law  of  that  State. ^  A  variance  between  the 
complaint  and  the  evidence  as  to  the  dates  of  instruments  alleged 
to  have  been  forged  has  been  held  immaterial.^ 

» In  re  Herskovitz,  136  Fed.  713.  S.  227,  230,  24  L.  ed.  170,  30  S.  C. 

6  Yordi  V.  Nolte,  215  U.  S.  227,  24  90 ;  Ex  parte  Dinehart,  188  Fed.  858. 

L.  ed.  170,  30  S.  C.  90.  ^  Rice   v.   Ames,    180   U.   S.    371, 

■'  Powell    V.    United    States,    206  374,  45  L.  ed.  577,  21  S.  C.  406. 

Fed.  400,  124  C.  C.  A.  282  (6th  Cir.) ;  ^  jn^e  v.  Ames,  supra. 

Glucksman  v.  Henkcl,  221  U.  S.  508,  "  Powell    v.    United    States,    206 

514,   55  L.  ed.  830,  31  S.   C.  704,  Fed.  400,  124  C.  C.  A.  282  (6th  Cir.). 

citing  Rice  v.  Ames,    180  U.  S.  371,  §  600.   >  Glucksman  v.  Henkel,  221 

375,  45  L.  ed.  577,  21  S.  C.  406.  U.  S.  508,  55  L.  ed.  830. 

§  599.   »  Yordi   v.   Nolte,   215   U.  ^  Ex  parte  Zentner,  188  Fed.  344. 

478 


Chap.  XLIV]  MOTIVE   OF   PROSECUTION   IMMATERIAL  [§  604 

§  601.  Prior  Rights  of  Trial. 

The  person  extradited  has  not  the  right  to  a  trial  to  a  con- 
clusion of  the  case  for  which  he  was  extradited,  if  in  the  meantime 
he  commits  another  offense  or  before  he  can  be  tried  for  a  crime 
subsequently  committed.  The  matter  lies  within  the  jurisdic- 
tion of  the  State  whose  laws  he  has  violated  since  his  extradition.^ 
This  applies  to  perjury  committed  on  the  trial  of  the  crime  for 
which  the  person  was  extradited.^ 

§  602.   Surrender,  President's  Rights. 

After  the  accused  has  been  committed  for  surrender,  and  even 
after  the  refusal  of  his  discharge  on  habeas  corpm,  the  President 
may  decline  to  surrender  him,  either  on  the  ground  that  the  case 
is  not  within  the  treaty,  or  that  the  evidence  is  not  sufficient  to 
establish  the  charge  of  the  criminality.^ 

§  603.  Determination  as  to  Surrender  for  Surrendering 
Executive. 

The  question  of  whether  or  not  a  fugitive  shall  be  surrendered 
must  of  necessity  be  decided  by  the  government  to  which  the 
application  for  the  fugitive's  surrender  is  made.  The  courts  of 
the  country  which  makes  the  demand  are  not  expected  to  review 
the  decisions  of  the  government  and  the  courts  of  the  country 
which  makes  the  surrender,^  and  the  decision  of  the  courts  of  the 
country  of  asylum  as  to  whether  the  crime  for  which  extradition  is 
sought  comes  within  the  terms  of  the  treaty  is  conclusive  on 
the  courts  of  the  demanding  country .^  Good  faith  toward  foreign 
powers  with  which  we  have  entered  into  treaties  of  extradition 
does  not  require  us  to  surrender  persons  charged  with  crime  in 
violation  of  our  well-settled  principles  of  criminal  jurisprudence. 

§  604.   Motive  of  Prosecution  Immaterial. 

The  existence  of  malice  or  other  ulterior  purpose  on  the  part 
of  a  prosecuting  witness  in  a  foreign  country  will  not  nullify  ex- 

§  601.   1  CoUins  v.  Johnston,  237  154  Fed.  401,  407,  85  C.  C.  A.  251 

U.  S.  502,  59  L.  ed.  1071,  35  S.  C.  649.  (5th  Cir.). 

2  Collins  V.   Johnston,   supra.  ^  Greene    v.    United    States,    154 

§  602.   iln  re  Stupp,  12  Blatchf.  Fed.  401,  410,  85  C.  C.  A.  251  (5th 

501,  23  Fed.  Cas.  No.  13663.  Cir.). 


§  603.   1  Greene  v.  United  States, 


479 


§  604]  EXTRADITION  [Chap.  XLIV 

tradition  proceedings  otherwise  valid.^  In  extradition  proceed- 
ings for  forgery  the  attitude  or  motives  of  the  persons  defrauded 
are  immaterial.^ 

§  605.   Sufficiency  of  Warrant  of  Extradition. 

It  is  not  usual,  nor  would  it  be  expedient  or  practicable,  for  the 
warrant  of  extradition  to  describe  the  crime  with  all  the  fullness 
that  would  be  required  in  an  indictment.^ 

§  606.   Surrender  Provisions  Not  Necessarily  Reciprocal. 

The  provisions  as  to  surrender  are  not  necessarily  reciprocal. 
Although  the  Italian  Government  has  given  the  word  "persons  " 
used  in  the  treaty  with  Italy  a  meaning  to  exclude  citizens  or 
subjects  of  the  respective  countries,  and  has  persistently  refused 
to  surrender  any  Italian  subject  who  has  returned  there  fugitive 
from  the  justice  of  the  United  States,  the  desistence  of  the  United 
States  Government  from  applying  for  the  extradition  of  Italian 
subjects  charged  with  crime  in  this  country  and  fleeing  to  Italy 
cannot  be  construed  as  an  abandonment  by  this  government  of 
its  contention  that  the  proper  construction  of  the  word  "  persons  " 
includes  subjects  and  citizens,  or  as  an  acknowledgment  that  the 
treaty  has  been  abrogated.^ 

§  607.   Habeas  Corpus. 

Habeas  coryus  will  be  granted  on  the  ground  of  want  of  juris- 
diction of  the  committing  magistrate.^  The  rule  that  a  writ  of 
habeas  corpus.he  used  as  a  writ  of  error  applies  to  extradition  cases.^ 
So,  mere  errors  of  a  committing  magistrate  in  the  rejection  of 
evidence  could  not  be  thus  reviewed.^  If  a  committing  magistrate 
has  jurisdiction  of  the  accused's  person  and  of  the  subject  matter, 
and  has  before  him  competent  legal  evidence  of  the  commission 
of  the  crime  charged,  which,  according  to  the  law  of  the  State 

§  604.   1  In    re    Herskovitz,     136  U.  S.  40,  40  L.  ed.  948,  23  S.    C. 

Fed.  713.  7S1. 

2  Ex  parte  Zentner,  188  Fed.  344.  ^  Charlton   v.    Kelly,    229    U.    S. 

§  605.   '  Greene  v.  United  States,  447,  57  L.  ed.  1274,  33  S.  C.  945, 

154  Fed.  401,  405,  85  C.  C.  A.  251  46  L.  R.  A.  (n.  s.)  397;   In  re  Hers- 

(5th  Cir.).  kovitz,  136  Fed.  713;   Benson  ;;.  Mc- 

§  606.    '  Ex   parte   Charlton,    185  Mahon,  127  U.  S.  457,  32  L.  ed.  234, 

Fed.  880.  8  S.  C.  1240. 

§  607.    '  Wright    t;.    Ilenkel,     190  »  Charlton  v.  Kelly,  supra. 

480 


Chap.  XLIV]  EXPENSES  [§  610 

where  the  accused  was  apprehended,  would  justify  his  appre- 
hension for  trial  if  the  crime  had  been  committed  in  that  State, 
his  decision  may  not  be  reviewed  on  habeas  corpus.'^  The  writ  of 
certiorari  fm-nishes  no  wider  range  for  determination  of  the 
sufficiency  of  the  facts  to  warrant  holding  for  extradition,  than 
the  writ  of  habeas  corpus}  The  omission  of  a  formal  act  of  re- 
lease of  a  person  held  under  an  illegal  arrest  by  State  authorities 
and  of  a  subsequent  formal  and  legal  arrest  thereafter  by  a  United 
States  Marshal  under  an  extradition  warrant  will  not  usually 
furnish  grounds  for  release  on  habeas  corpus,  where  it  does  not 
appear  that  a  different  rule  would  be  applied  in  the  demanding 
country.^ 

§  G08.  Direct  Appeal  to  Supreme  Court. 

An  appeal  lies  directly  to  the  Supreme  Court  from  a  judgment  in 
a  habeas  corpus  case  where  the  construction  of  an  extradition 
treaty  is  involved,^  even  though  it  is  also  necessary  to  construe  the 
acts  of  Congress  passed  to  carry  the  treaty  provisions  into  effect.^ 

§  609.   Surrender  of  Property  Found  in  Accused's  Possession. 

Under  the  usages  which  govern  extraditions,  property  found 
upon  a  criminal's  person  at  the  time  of  his  arrest,  if  obtained  by 
the  commission  of  the  criminal  act  with  which  he  is  charged,  or  if 
material  as  evidence  to  prove  such  act,  is  generally  surrendered 
with  the  person  at  the  time  of  the  extradition.^ 

§  610.   Expenses. 

The  ordinary  expenses,  including  counsel's  fees,  attending  the 
process  of  international  extradition,  are  to  be  defrayed  by  the 
demanding  Government.^ 

*  Charlton   v.    Kelly,    supra;     Ex  « Kelly   v.   Griffin,    241.  U.    S.    6, 

parte    Zentner,    188    Fed.    344;     Re  60  L.  ed.  861,  36  S.  C.  487. 
Luis  Oteiza,  136  U.  S.  330,  34  L.  ed.  §  608.    ^  Rice  v.  Ames,    180  U.   S. 

464,    10   S.   C.    1031 ;    Terlinden  v.  371,  4.5  L.  ed.  577,  21  S.  C.  406. 
Ames,  184  U.  S.  270,  46  L.  ed.  534,  ^  Pettit  ;;.  Walshe,  194  U.  S.  205, 

22  S.  C.  484 ;    Re  Metzger,  5  How.  48  L.  ed.  938,  24  S.  C.  657. 

176;    In  re  Stupp,  12  Blatchf.  501,  §609.    1 23     Opinions     Attorney- 

23  Fed.  Cas.  No.  13563.  General,  535. 

6  In  re  Lincoln,  228  Fed.  70.  §  610.    ^  7      Opinions     Attorney- 

General,  612. 

VOL.  1  —  31  481 


§  611]  EXTRADITION  [ChaP.  XLIV 

§  611.  Documentary  Evidence. 

Revised  Statute  Section  5271  reads  as  follows :  "  In  every  case 
of  complaint,  and  of  a  hearing,  upon  the  return  of  the  warrant  of 
arrest,  copies  of  the  depositions  upon  which  an  original  warrant  in 
any  foreign  country  may  have  been  granted,  certified  under  the  hand 
of  the  person  issuing  such  warrant,  and  attested  upon  the  oath  of 
the  party  producing  them  to  be  true  copies  of  the  original  depo- 
sitions, may  be  received  in  evidence  of  the  criminality  of  the  person 
so  apprehended,  if  they  are  authenticated  in  such  manner  as  would 
entitle  them  to  be  received  for  similar  purposes  by  the  tribunals 
of  the  foreign  country  from  which  the  accused  party  escaped. 
The  certificate  of  the  principal  diplomatic  or  consular  officer 
of  the  United  States  resident  in  such  foreign  country  shall  be  proof 
that  any  paper  or  other  document  so  offered  is  authenticated  in 
the  manner  required  by  this  section."  ^  It  is  sufficient  that  foreign 
aflSdavits,  complaints,  warrants,  etc.,  are  properly  authenticated 
in  accordance  with  this  section.  One  of  the  objects  of  the  section 
is  to  obviate  the  necessity  of  confronting  the  accused  with  the 
witnesses  against  him ;  and  a  construction  of  it,  or  of  Article  X 
of  the  British  treaty  of  1842,  that  would  require  the  demanding 
government  to  send  its  citizens  to  another  country  to  institute 
legal  proceedings  would  defeat  the  whole  object  of  the  treaty.^ 
Sufficient  authentication  of  documents  admitted  in  evidence.^ 
Evidence  of  identity  held  to  be  insufficient.'' 

§  612.   Documentary  Evidence  —  Continued. 

Revised  Statute  Section  5272  reads  as  follows :  "  It  shall  be  law- 
ful for  the  Secretary  of  State,  under  his  hand  and  seal  of  oflSce,  to 
order  the  person  so  committed  to  be  delivered  to  such  person  as 
shall  be  authorized,  in  the  name  and  on  behalf  of  such  foreign 
government,  to  be  tried  for  the  crime  of  which  such  person  shall 
be  so  accused,  and  such  person  shall  be  delivered  up  accordingly ; 

§  611.   '  Act  of  August  12,  1848,  and  Yordi  v.  Nolte,  215  U.  S.  227, 

ch.  167,  9  Stat.  L.  302;   Act  of  June  231,  24  L.  ed.  170,  30  S.  C.  90. 
22,  18()0,  ch.  184,  12  Stat.  L.  84.  ^  See  In  re  Stupp,  12  Blatchf.  501, 

2  Bingham  v.  Bradley,  241  U.  S.  23  Fed.  Cas.  No.  13563. 
511,  517,  60  L.  cd.   1136,  36  S.  C.  *  See   Ex  parte   La   Mantia,   206 

634,  ciling  Rice  v.  Ames,    180  U.  S.  Fed.  330. 
371,  375,  45  L.  ed.  577,  21  S.  C.  406, 
482 


/'/ 


Chap.  XLIV]  CONTINUANCE   OF   PROVISIONS  [§  614 

and  it  shall  be  lawful  for  the  person  so  authorized  to  hold  such 
person  in  custody,  and  to  take  him  to  the  territory  of  such  foreign 
government,  pursuant  to  such  treaty.  If  the  person  so  accused 
shall  escape  out  of  any  custody  to  which  he  shall  be  committed, 
or  to  which  he  shall  be  delivered,  it  shall  be  lawful  to  retake  such 
person  in  the  same  manner  as  any  person  accused  of  any  crime 
against  the  laws  in  force  in  that  part  of  the  United  States  to  which 
he  shall  so  escape,  may  be  retaken  on  an  escape."  ^  Under  this 
section  the  Secretary  of  State  has  power  to  review  the  proceedings 
in  an  extradition  case  certified  to  him,  and  this  power  extends  to 
the  review  of  every  question  therein  presented.^ 

§  613.   Time  Limited  for  Extradition. 

Revised  Statute  Section  5273  reads  as  follows :  "  Whenever  any 
person  who  is  committed  under  this  title  or  any  treaty,  to  remain 
until  delivered  up  in  pursuance  of  a  requisition,  is  not  so  delivered 
up  and  conveyed  out  of  the  United  States  within  two  calendar 
months  after  such  commitment,  over  and  above  the  time  actually 
required  to  convey  the  prisoner  from  the  jail  to  which  he  was 
committed,  by  the  readiest  way,  out  of  the  United  States,  it  shall 
be  lawful  for  any  judge  of  the  United  States,  or  of  any  State,  upon 
application,  made  to  him  by  or  on  behalf  of  the  person  so  com- 
mitted, and  upon  proof  made  to  him  that  reasonable  notice  of  the 
intention  to  make  such  application  has  been  given  to  the  Secretary 
of  State,  to  order  the  person  so  committed  to  be  discharged  out  of 
custody,  unless  sufficient  cause  is  shown  to  such  judge  why  such 
discharge  ought  not  to  be  ordered."  ^  Accused  will  be  discharged 
on  expiration  of  period  of  two  months  where  no  sufficient  cause  for 
delay  is  shown  though  officer  is  on  his  way  from  foreign  country.^ 

§  614.   Continuance  of  Provisions. 

Revised  Statute  Section  5274  reads  as  follows :  "The provisions  of 
the  Title  relating  to  the  surrender  of  persons  who  have  committed 
crimes  in  foreign  countries  shall  continue  in  force  during  the  exist- 

§  612.   1  Act  of  August   12,  1848,  §  613.   i  Act  of  August  12,  1848, 

ch.  167,  9  Stat.  L.  302.  ch.  167,  9  Stat.  L.  303. 

- 17    Opinions    Attorney-General,  ^  In  re  Dawson,  101  Fed.  253. 

184. 

483 


§  614]  EXTRADITION  [Chap.  XLIV 

ence  of  any  treaty  of  extradition  with  any  foreign  government,  and 
no  longer."  ^ 

§  615.   Care  and  Custody  of  Accused. 

Revised  Statute  Section  5275  provides :  "  Whenever  any  person 
is  delivered  by  any  foreign  government  to  an  agent  of  the  United 
States,  for  the  purpose  of  being  brought  within  the  United  States 
and  tried  for  any  crime  of  which  he  is  duly  accused,  the  President 
shall  have  power  to  take  all  necessary  measures  for  the  trans- 
portation and  safe-keeping  of  such  accused  person  and  for  his 
security  against  lawless  violence,  until  the  final  conclusion  of  his 
trial  for  the  crimes  or  offenses  specified  in  the  warrant  of  extradition, 
and  until  his  final  discharge  from  custody  or  imprisonment  for 
or  on  account  of  such  crimes  or  offenses,  and  for  a  reasonable  time 
thereafter,  and  may  employ  such  portion  of  the  land  or  naval 
forces  of  the  United  States,  or  of  the  militia  thereof,  as  may  be 
necessary  for  the  safe-keeping  and  protection  of  the  accused."  ^ 

A  person  extradited  from  Great  Britain  is  not  protected  by 
Section  5275  from  being  tried  and  convicted  for  a  crime  committed 
in  the  United  States  after  extradition.^ 

§  616.  Powers  of  Agent  Receiving  Offenders. 

Revised  Statute  Section  5276  reads  as  follows  :  "  Any  person  duly 
appointed  as  agent  to  receive,  in  behalf  of  the  United  States,  the 
delivery  by  a  foreign  government,  of  any  person  accused  of  crime 
committed  within  the  jurisdiction  of  the  United  States,  and  to 
convey  him  to  the  place  of  his  trial,  shall  have  all  the  powers  of  a 
marshal  of  the  United  States,  in  the  several  districts  through 
which  it  may  be  necessary  for  him  to  pass  with  such  prisoner,  so 
far  as  such  power  is  requisite  for  the  prisoner's  safe-keeping."  ^ 

§  617.   Punishment  for  Interfering  with  Agent. 

Revised  Statute  Section  5277  provides  as  follows  :  "  Every  person 
who  knowingly  and  wilfully  obstructs,  resists,  or  opposes  such  agent 
in  the  execution  of  his  duties,  or  who  rescues  or  attempts  to  rescue 

§  614.    •  Act  of  August    12,  1848,  ^  Collins  v.   Johnston,   237  U.   S. 

ch.  ir.7,  9  Stat.  L.  303.  502,  59  L.  ed.  1071,  35  S.  C.  649. 

§  615.   >  Act   of   March  3,  1869,  §  616.   ^  Act  of  March  3,  1869,  ch. 

ch.  141,  15  Stat.  L.  337.  141,  15  Stat.  L.  338. 

484 


Chap.  XLIV]  FEES    OF    COMMISSIONERS  [§  619 

such  prisoner,  whether  in  the  custody  of  the  agent  or  of  any 
officer  or  person  to  whom  his  custody  has  lawfully  been  committed, 
shall  be  punishable  by  a  fine  of  not  more  than  one  thousand  dollars, 
and  by  imprisonment  for  not  more  than  one  year."  ^ 

§  618.   Place  and  Nature  of  Hearing. 

"  All  hearings  in  cases  of  extradition  under  treaty  stipulation  or 
convention  shall  be  held  on  land,  publicly,  and  in  a  room  or  office 
easily  accessible  to  the  public."  ^ 

§  619.  Fees  of  Commissioners. 

"  The  following  shall  be  the  fees  paid  to  commissioners  in  cases 
of  extradition  under  treaty  stipulation  or  convention  between  the 
Government  of  the  United  States  and  any  foreign  government,  and 
no  other  fees  or  compensation  shall  be  allowed  to  or  received  by 
them :  For  administering  an  oath,  ten  cents.  For  taking  an 
acknowledgment,  twenty-five  cents.  For  taking  and  certifying 
depositions  to  file,  twenty  cents  for  each  folio.  For  each  copy  of 
the  same  furnished  to  a  party  on  request,  ten  cents  for  each  folio. 
For  issuing  any  warrant  or  writ,  and  for  any  other  service,  the  same 
compensation  as  is  allowed  clerks  for  like  services.  For  issuing 
any  warrant  under  the  tenth  article  of  the  treaty  of  August  ninth, 
eighteen  hundred  and  forty-two,  between  the  United  States  and 
the  Queen  of  the  United  Kingdom  of  Great  Britain  and  Ireland, 
against  any  person  charged  with  any  crime  or  offense  as  set  forth 
in  said  article,  two  dollars.  For  issuing  any  warrant  under  the 
provision  of  the  convention  for  the  surrender  of  criminals  between 
the  United  States  and  the  King  of  the  French  concluded  at 
Washington,  November  ninth,  eighteen  hundred  and  forty-three, 
two  dollars.  For  hearing  and  deciding  upon  the  case  of  any 
person  charged  with  any  crime  or  offense,  and  arrested  under 
the  provisions  of  any  treaty  or  convention,  five  dollars  a  day  for  the 
time  necessarily  employed."  ^  This  section  may  be  regarded  as 
superseded  by  Section  1451  which  as  to  compensation  in  extradi- 
tion cases  re-enacted  Revised  Statute  Section  847. 

§617.   lAct   of   March   3,    1869,  §619.   ^  Act  of  August  3,    1882, 

ch.  141,  15  Stat.  L.  338.  c.  378,  §  2,  22  Stat.  L.  215. 

§  618.   1  Act  of  August  3,   1882, 
c.  378,  §  1,  22  Stat.  L.  215. 

485 


§  620]  EXTRADITION  [Chap.  XLIV 

§  620.  Witnesses'  Fees. 

"  That  on  the  hearing  of  any  case  under  a  claim  of  extradition 
by  any  foreign  government,  upon  affidavit  being  filed  by  the  person 
charged  setting  forth  that  there  are  witnesses  whose  evidence 
is  material  to  his  defense,  that  he  cannot  safely  go  to  trial  without 
them,  what  he  expects  to  prove  by  each  of  them,  and  that  he  is 
not  possessed  of  sufficient  means,  and  is  actually  unable  to  pay 
the  fees  of  such  witnesses,  the  judge  or  commissioner  before  whom 
such  claim  for  extradition  is  heard  may  order  that  such  witnesses 
be  subpoenaed ;  and  in  such  cases  the  costs  incurred  by  the  pro- 
cess, and  the  fees  of  witnesses,  shall  be  paid  in  the  same  manner 
that  similar  fees  are  paid  in  the  case  of  witnesses  subpoenaed  in 
behalf  of  the  United  States."  ^  The  prime  purpose  of  this  section 
is  to  afford  the  defendant  the  means  for  obtaining  the  testimony  of 
witnesses  and  to  provide  for  their  fees.  In  no  sense  does  the  statute 
make  relevant,  legal  or  competent  evidence  which  would  not  have 
been  competent  before  the  statute  upon  such  a  hearing.  The 
provision  does  not  have  the  effect  of  giving  the  accused  the  right 
to  introduce  any  evidence  which  would  be  admissible  upon  a 
trial  under  an  issue  of  not  guUty.^ 

§  621.  Payment  of  Fees  and  Costs. 

"  That  all  witness  fees  and  costs  of  every  nature  in  cases  of 
extradition,  including  the  fees  of  the  commissioner,  shall  be 
certified  by  the  judge  or  commissioner  before  whom  the  hearing 
shall  take  place  to  the  Secretary  of  State  of  the  United  States, 
w^ho  is  hereby  authorized  to  allow  the  payment  thereof  out  of 
the  appropriation  to  defray  the  expenses  of  the  judiciary;  and 
the  Secretary  of  State  shall  cause  the  amount  of  said  fees  and 
costs  so  allowed  to  be  reimbursed  to  the  Government  of  the  United 
States  by  the  foreign  government  by  whom  the  proceedings  for 
extradition  may  have  been  instituted."  ^ 

§  622.   Evidence  on  the  Hearing. 

"  That  in  all  cases  where  any  depositions,  warrants  or  other 
papers  or  copies  thereof  shall  be  offered  in  evidence  upon  the  hear- 

§  620.   1  Act  of  August  3,  1882,  c.  §  621.   »  Act  of  August  3,  1882,  c. 

378,  §  3,  22  Stat.  L.  215.  378,  §  4,  22  Stat.  L.  216. 

2Chiirlton    v.    Kelly,    229    U.    S. 
447,  57  L.  cd.  1274,  33  S.  C.  945. 
486 


Chap.  XLIV]  HOW   FEES   AND    COSTS    PAID  [§  623 

ing  of  an  extradition  case  under  Title  Sixty-six  of  the  Revised 
Statutes  of  the  United  States,  such  depositions,  warrants,  and  other 
papers,  or  the  copies  thereof,  shall  be  received  and  admitted  as 
evidence  on  such  hearing  for  all  the  purposes  of  such  hearing  if 
they  shall  be  properly  and  legally  authenticated  so  as  to  entitle 
them  to  be  received  for  similar  purposes  by  the  tribunals  of  the 
foreign  country  from  which  the  accused  party  shall  have  escaped, 
and  the  certificate  of  the  principal  diplomatic  or  consular  officer 
of  the  United  States,  resident  in  such  foreign  country  shall  be 
proof  that  any  deposition,  warrant,  or  other  paper  or  copies 
thereof,  so  offered,  are  authenticated  in  the  manner  required  by 
this  act."  ^  Depositions  duly  authenticated  as  this  statute  re- 
quires are  properly  admitted  though  some  of  them  are  not  sworn  to.^ 
This  statute  supersedes  the  requirement  of  Section  5271  that 
copies  of  documents  offered  in  evidence  shall  be  attested  by  the  "^  s?  i 
oath  of  the  person  producing  them,  and  such  attestation  is  not 
necessary.^  When  the  documentary  evidence  has  been  authenti- 
cated as  required  by  the  statute,  it  is  admissible,  leaving  to  the 
commissioner  merely  the  question  of  determining  the  sufiiciency  of 
the  evidence  therein  contained.^  It  is  sufficient  if  documents  are 
offered,  authenticated  as  certified  by  the  American  ambassador, 
so  as  to  entitle  them  to  be  received  "  for  similar  purposes  " —  that 
is,  as  evidence  of  his  criminality.^  The  sufficiency  of  evidence 
properly  certified  under  Section  5  cannot  be  reviewed  upon  habeas 
corpus.^ 

§  623.  How  Fees  and  Costs  Paid. 

"  That  from  and  after  June  thirtieth,  nineteen  hundred  and 
three,  all  the  fees  and  costs  in  extradition  cases  shall  be  paid  out 
of  the  appropriations  to  defray  the  expenses  of  the  judiciary,  and 
the  Attorney-General  shall  certify  to  the  Secretary  of  State  the 
amounts  to  be  paid  to  the  United  States  on  account  of  said  fees 

§  622.   1  Act  of  August   3,    1882,  ^  i^    re    Lincoln,    228    Fed.    70. 

c.  378,  §  5,  22  Stat.  L.  216.  Affirmed  241  U.  S.  651. 

2  Ex  parte  Glaser,  176  Fed.  702,  s  Qrin  v.  Shine,  187  U.  S.  181, 
100  C.  C.  A.  254  (2d  Cir.).  47  L.  ed.  130,  23  S.  C.  98;    In  re 

3  Ex  parte  Schorer  §  197  Fed.  67.        Oteiza,  136  U.  S.  330,  34  L.  ed.  464, 
*Ex  parte  Schorer,  supra;    EUas      10  S.  C.  1031. 

V.  Ramirez,  215  U.  S.  39§,  54  L.  ed. 
253,  30  S.  C.  135. 

487 


§  623]  EXTRADITION  [Chap.  XLIV 

and  costs  in  extradition  cases  by  the  foreign  government  re- 
questing the  extradition,  and  the  Secretary  of  State  shall  cause  said 
amounts  to  be  collected  and  transmitted  to  the  Attorney-General 
for  deposit  in  the  Treasury  of  the  United  States."  ^ 

§  624.  Delivery  of  Fugitives  as  between  Foreign  Country  and 
Philippines. 

"That  the  provisions  of  section  fifty-two  hundred  and  seventy, 
fifty-two  hundred  and  seventy-one,  fifty-two  hundred  and  seventy- 
two,  fifty-two  hundred  and  seventy-three,  fifty-two  hundred  and 
seventy -four,  fifty-two  hundred  and  seventy-five,  fifty-two  hundred 
and  seventy-six,  and  fifty-two  hundred  and  seventy-seven  of  the 
Revised  Statutes  (as  amended  by  the  Act  approved  August  third, 
eighteen  hundred  and  eighty-two)  so  far  as  applicable,  shall  apply 
to  the  Philippine  Islands  for  the  arrest  and  removal  therefrom 
of  any  fugitives  from  justice  charged  with  the  commission  within 
the  jurisdiction  of  any  foreign  government  of  any  of  the  crimes 
provided  for  by  treaty  between  the  United  States  and  such  foreign 
nation,  and  for  the  delivery  by  a  foreign  government  of  any  person 
accused  of  crime  committed  within  the  jurisdiction  of  the  Philip- 
pine Islands.  Such  fugitives  from  justice  of  a  foreign  country 
may,  upon  warrant  duly  issued,  by  any  judge  or  magistrate  of  the 
Philippine  Islands,  and  agreeably  to  the  usual  mode  of  process, 
against  offenders  therein,  be  arrested  and  brought  before  such 
judge  or  magistrate,  who  shall  proceed  in  the  matter  in  accordance 
with  the  provisions  of  the  Revised  Statutes  hereby  made  applicable 
to  the  Philippine  Islands ;  Provided,  that  for  the  purposes  of  this 
section  the  order  or  warrant  for  delivery  of  a  person  committed 
for  extradition  prescribed  by  section  fifty-two  hundred  and  seventy- 
two  of  the  Revised  Statutes  shall  be  issued  by  the  Governor  of  the 
Philippine  Islands  under  his  hand  and  seal  of  office,  and  not  by 
the  Secretary  of  State."  ^  This  section  contained  Revised  Statute 
§  5280,  which  reads  as  follows :  "  On  application  of  a  consul 
or  vice-consul  of  any  foreign  government  having  a  treaty  with 
the  United  States  stipulating  for  the  restoration  of  seamen  desert- 
ing, made  in  writing,  stating  that  the  person  therein  named  has 

§  623.   1  Act  of  June  28,  1902,  c.  §  624.  i  Act  of  February  6,  1905, 

1301,  §  1,  32  Stat.  L.  475.  c.  454,  §  1,  33  Stat.  L.  698. 

488 


dM^i-fCt,*-*.^ 


A.M■eC'U^'^Ji-*\_ 


Chap.  XLIV]  PHILIPPINE  ISLANDS  [§  624 

deserted  from  a  vessel  of  any  such  government,  while  in  any  port 
of  the  United  States  and  on  proof  by  the  exhibition  of  the  register 
of  the  vessel,  ship's  roll,  or  other  official  document,  that  the  person 
named  belonged,  at  the  time  of  desertion,  to  the  crew  of  such 
vessel,  it  shall  be  the  duty  of  any  court,  judge,  commissioner  or 
any  circuit  court,  justice  or  other  magistrate,  having  competent 
power,  to  issue  warrants  to  cause  such  person  to  be  arrested  for 
examination.  If  on  examination,  the  facts  stated  are  found  to  be 
true,  the  person  arrested  not  being  a  citizen  of  the  United  States, 
shall  be  delivered  up  to  the  consul  or  vice-consul,  to  be  sent  back 
to  the  dominions  of  any  such  government,  or,  on  the  request  and 
at  the  expense  of  the  consul  or  vice-consul,  shall  be  detained  until 
the  consul  or  vice-consul  finds  an  opportunity  to  send  him  back 
to  the  dominions  of  any  such  government.  No  person  so  arrested 
shall  be  detained  more  than  two  months  after  his  arrest;  but  at 
the  end  of  that  time  shall  be  set  at  liberty,  and  shall  not  be 
again  molested  for  the  same  cause.  If  any  such  deserter  shall 
be  found  to  have  committed  any  crime  or  offense,  his  surrender 
may  be  delayed  until  the  tribunal  before  which  the  case  shall  be 
depending,  or  may  be  cognizable,  shall  have  pronounced  its 
sentence,  and  such  sentence  shall  have  been  carried  into  effect." 
It  was  repealed  to  take  effect  upon  the  termination  of  provisions 
of  treaties  etc.,  for  arrest  or  imprisonment  of  officers  and  seamen 
deserting  or  charged  with  desertion  from  merchant  vessels  of 
foreign  countries  and  for  co-operation,  etc.,  of  legal  authorities 
in  effecting  such  arrest  or  imprisonment,  pursuant  to  notice  of 
such  termination. 2 

2  Act  of  March  4,  1915,  c.  153,  §§  16-18. 


489 


CHAPTER  XLV 

EXTRADITION 

II.     INTERSTATE     RENDITION 

§  625.  Fugitives  from  Justice  from  State  or  Territory. 

§  626.  Source  of  Right  of  Extradition  and  Jurisdiction. 

§  627.  Territories  Have  Same  Right  as  States. 

§  628.  "Fugitive  from  Justice." 

§  629.  Knowledge  of  Prosecution  Immaterial. 

§  630.  Escaped  Convict. 

§  631.  Flight  after  Overt  Act. 

§  632.  Constructive  Presence  Not  Sufficient. 

§  633.  Involimtary  Presence  in  State. 

§  634.  Wrongfully  Acquired  Jurisdiction. 

§  635.  Proof  before  Governor. 

§  636.  Sufficiency  of  Requisition  Papers. 

§  637.  Indictment. 

§638.  Affidavit. 

§  639.  Information. 

§  640.  Copy  of  Indictment  or  Affidavit. 

§  641.  Magistrate  before  Whom  Affidavit  Made. 

§  642.  Necessity  for  Charge. 

§  643.  "Charged  with  Crime." 

§  644.  "Treason,  Felony  or  Other  Crime." 

§  645.  "Certified  as  Authentic." 

§  646.  Sufficient  Authentication. 

§  647.  Accused's  Right  to  Hearing. 

§  648u  Proceedings. 

§  649.  Statute  of  Limitations. 

§  650.  Warrant  of  Removal. 

§651.  Bail. 

§  652.  Trial  for  Other  Offenses. 

§  653.  Review  by  Federal  Court. 

§  654.  Identity  of  Accused. 

§  655.  Subsequent  Proceedings  in  Courts  of  Demanding  State. 

§  656.  Direct  Appeal  to  Supreme  Court. 
490 


Chap.  XLV]  INTERSTATE    RENDITION  [§  626 

§  657.  Rearrest  after  Discharge  on  Habeas  Corpus. 

§  658.  Prior  Right  of  Surrendering  State. 

§  659.  Penalty  for  Resisting  Agent. 

§  660.  Agent  to  Receive  Accused. 

§  661.  Fugitives  from  Justice  —  PhiHppine  Islands. 

§  625.   Fugitives  from  Justice  from  State  or  Territory. 

The  statute  provides :  "  Whenever  the  executive  authority  of 
any  State  or  Territory  demands  any  person  as  a  fugitive  from 
justice,  of  the  executive  authority  of  any  State  or  Territory  to 
which  such  person  has  fled,  and  produces  a  copy  of  an  indictment 
found  or  an  affidavit  made  before  a  magistrate  of  any  State  or 
Territory  charging  the  person  demanded  with  having  committed 
treason,  felony,  or  other  crime,  certified  as  authentic  by  the 
governor  or  chief  magistrate  of  the  State  or  Territory  from  whence 
the  person  so  charged  has  fled,  it  shall  be  the  duty  of  the  executive 
authority  of  the  State  or  Territory  to  which  such  person  has  fled 
to  cause  him  to  be  arrested  and  secured,  and  to  cause  notice  of 
the  arrest  to  be  given  to  the  executive  authority  making  such 
demand,  or  to  the  agent  of  such  authority  appointed  to  receive 
the  fugitive,  and  to  cause  the  fugitive  to  be  delivered  to  such  agent 
when  he  shall  appear.  If  no  such  agent  appears  within  six  months 
from  the  time  of  the  arrest,  the  prisoner  may  be  discharged.  All 
costs  or  expenses  incurred  in  the  apprehending,  securing  and 
transmitting  such  fugitive  to  the  State  or  Territory  making  such 
demand,  shall  be  paid  by  such  State  or  Territory."  ^ 

§  626.   Source  of  Right  of  Extradition  and  Jurisdiction. 

The  right  of  extradition  is  not  founded  on  any  State  statute, 
comity,  or  contract,  but  upon  the  Constitution  and  laws  of  the 
United  States.^  Prior  to  the  adoption  of  the  Constitution  fugitives 
from  justice  were  surrendered  between  the  States  conformably  to 
what  were  deemed  to  be  the  controlling  principles  of  equity.^  The 
language  of  the  Constitutional  provision  was  not  intended  to 
express  the  law  of  extradition  as  usually  prevailing  among  in- 
dependent nations,  but  to  provide  a  summary  executive  proceeding 

§  625.   1  Act  of  February  12, 1793,  -  Innes  v.  Tobin,  240  U.  S.  127, 

c.  7,  1  Stat.  L.  302.  60  L.  ed.  562,  36  S.  C.  290 ;    Com- 

§  626.   '  Ex    parte    Montgomery,  monwealth  of  Kentucky  v.  Dennison, 

244  Fed.  967.                  "  24  How.  (U.  S.)  66,  101,  16  L.  ed.  717. 

491 


§  626]  EXTRADITION  [Chap.  XLV 

whereby  the  closely  associated  States  of  the  Union  could  promptly 
aid  one  another  in  bringing  accused  persons  to  trial. ^  It  was 
intended  by  the  Constitutional  provision  to  confer  authority  upon 
Congress  to  deal  with  the  subject  of  interstate  rendition.^  The  Act 
of  1793  was  enacted  for  the  purpose  of  controlling  the  subject 
in  so  far  as  it  was  deemed  wise  to  do  so,  and  its  provisions  were 
intended  to  be  dominant  and,  so  far  as  they  operated,  controlling 
and  exclusive  of  state  power. ^  The  provision  will  be  strictly 
construed,  and  all  the  requirements  of  the  statute  must  be 
respected.^  Upon  these  provisions  of  the  organic  and  statutory 
law  of  the  United  States  rest  exclusively  the  right  of  one  state  to 
demand,  and  the  obligation  of  the  other  state  upon  which  the 
demand  is  made  to  surrender,  a  fugitive  from  justice.^  State 
laws  in  aid  of  Federal  legislation  should  be  construed  in  connection 
with  the  laws  of  Congress.^ 

§  627.  Territories  Have  Same  Right  as  States. 

Under  this  section  the  power  to  demand  and  surrenaer  fugitive 
criminals  is  as  complete  with  Territories  as  with  States.^  Under 
this  section  the  executive  of  a  Territory  has  the  same  rights  and 
bears  the  same  duties  as  the  Governor  of  a  State.^  And  under  Sec- 
tion 17  of  the  Act  of  April  12,  1900,  c.  191,  31  Stat.  L.  77,  81,  the 
governor  of  Porto  Rico  has  the  same  power  that  the  governor  of 
any  organized  Territory  has  to  issue  requisitions  under  this  section.' 
Porto  Rico  is  a  completely  organized  Territory,  although  not  a 

3  Biddinger    v.    Commissioner    of  ^  Ex   parte    Hart,    63    Fed.    249, 

Police   of   City  of   New   York,    245  259,    11   C.   C.   A.    165    (4th   Cir.) ; 

U.  S.  128,  62  L.  ed.  193,  38  S.  C.  41 ;  Ex  parte  Morgan,  20  Fed.  298. 

Lascelles  v.  Georgia,  148  U.  S.  537,  ^  Lascelles  v.  Georgia,  supra. 

37  L.  ed.  549,  13  S.  C.  687.  «  Ex   parte    McKean,  3    Hughes, 

Unnes    v.    Tobin,    supra;     Prigg  23,  Fed.  Cas.  No.  8848. 

V.   Commonwealth  of  Pennsylvania,  §  627.   ^  Kopel   v.    Bingham,    211 

16  Pet.  (U.  S.)  539,  10  L.  ed.  1060 ;  U.  S.  468,  53  L.  ed.  286,  29  S.  C.  190 ; 

Taylor  v.  Taintor,   16  Wall.   (U.  S.)  Ex  parte  Reggel,  114  U.  S.  642,  29 

366,   21    L.   ed.   287;     Applcyard  v.  L.  ed.  250,  5  S.  C.  1148. 

Massachusetts,    203    U.    S.    222,    51  ^  ^^  parte  Krause,  228  Fed.  547 ; 

L.  cd.  161,  27  .S.  C.  122.  Ex  parte  Reggel,  supra;    Ex  parte 

^  Innes  v.   Tobin,  supra;    Mahon  Morgan,  20  Fed.  298. 

V.  Justice,  127  U.  S.  700,  32  L.  ed.  283,  »  Kopel  v.  Bingham,  supra. 
8  S.  C.  1204 ;    Lascelles  v.  Georgia, 
supra. 

492 


Chap.  XLV]         KNOWLEDGE    OF    PROSECUTION    IMMATERIAL      [§  629 

Territory  incorporated  into  the  United  States,  and  there  is  no 
reason  why  Porto  Rico  should  not  be  held  to  be  such  a  Territory 
as  is  comprised  in  this  section.*  There  is  no  extradition  between 
the  District  of  Columbia  and  a  State  covering  cases  of  fugitives 
from  the  District.  A  crime  created  by  an  act  of  Congress  applying 
specially  to  the  District  of  Columbia  is  removable  under  Section 
1014.^ 

§  628.   '•'  Fugitive  from  Justice." 

If  the  alleged  fugitive  was  in  the  demanding  State  at  the  time 
when  the  offense  was  committed,  he  is,  whenever  he  is  thereafter 
found  in  another  State,  presumed  to  be  a  fugitive  from  justice, 
no  matter  for  what  purpose  or  reason  or  under  what  circumstances 
he  left  the  State.^  Proof  that  the  defendant  committed  a  crime 
in  one  State,  and  when  sought  to  be  subjected  to  the  criminal 
process  of  that  State  he  was  found  in  another  State,  is  sufficient 
to  establish  that  he  was  a  fugitive  from  justice.^ 

§  629.  Knowledge  of  Prosecution  Immaterial. 

One  who  leaves  the  demanding  State  before  prosecution  is 
anticipated  or  begun,  or  without  knowledge  on  his  part  that  he 
has  violated  any  law,  or  who,  having  committed  a  crime  in  one 
State,  returns  to  his  home  in  another,  is  nevertheless  held  to  be  a 
fugitive  from  justice  within  the  meaning  of  this  section  and  the 
constitutional  provision.^  The  fact  that  the  accused  was  in  the 
State  of  Illinois  at  the  time  it  was  charged  that  he  committed  the 
crimes  for  which  he  was  indicted ;  that  the  indictments  were  in 
form  and  were  certified  as  required  by  law,  and  that  he  was  found 
in  the  State  of  New  York,  satisfied  the  requirement  of  the  statute 

*  Kopel  V.  Bingham,  supra.  C.    C.   A.   99    (2d   Cir.) ;    Ex  parte 

6  United  States  ex  rel.   Vause  v.  Reggel,  114  U.  S.  642,  29  L.  ed.  250, 

McCarthy,  250  Fed.  800.  5  S.  C.  1148;    Roberts  v.  Reilly,  116 

§  628.   1  Ex    parte    Montgomery,  U.  S.  80,  29  L.  ed.  544,  6  S.  C.  291. 
244  Fed.  967 ;  Reed  v.  United  States,  §  629.   '  Biddinger     v.     Commis- 

224  Fed.  378,  140  C.  C.  A.  64  (9th  sioner  of  PoHce  of  the  City  of  New 

Cir.) ;    Bassing  v.   Cady,  208  U.  S.  York,  245  U.  S.  128,  62  L.  ed.  193, 

386,  52  L.  ed.  540,  28  S.  C.  392;  38    S.    C.    41;     Roberts    v.    Reilly, 

Drew  V.  Thaw,  235  U.  S.  432,  59  L.  116  U.  S.  80,  29  L.  ed.  544,  6  S.  C. 

ed.   302,   35   S.   C.    137;    Ex  parte  291;     Appleyard   v.    Massachusetts, 

Hoffstot,  180  Fed.  240.^  203  U.  S.  222,  51  L.  ed.  161,  27  S.  C. 

2  In  re  Strauss,  126  ^Fed.  327,  63  122. 

493 


§  629]  EXTRADITION  [Chap.  XLV 

and  by  its  terms  made  it  the  duty  of  the  Governor  of  New  York 
to  cause  the  accused  to  be  arrested  and  given  into  the  custody  of 
the  Illinois  authorities.^ 

§  630.  Escaped  Convict. 

One  who  has  been  convicted  of  a  crime  in  one  State,  has  not 
served  the  term  for  which  he  was  sentenced  on  that  conviction, 
and  when  wanted  was  found  in  another  State,  is  a  fugitive  from 
justice.^ 

§  631.  Flight  after  Overt  Act. 

If  the  accused  does  within  the  demanding  State  an  overt  act 
which  is  and  is  intended  to  be  a  material  step  toward  accomplish- 
ing the  crime,  and  then  absents  himself  from  the  State  and  does 
the  rest  elsewhere,  he  becomes  a  fugitive  from  justice  when  the 
crime  is  complete,  if  not  before.^ 

§  632.   Constructive  Presence  Not  Sufficient. 

Constructive  presence  will  not  suffice  as  a  basis  for  extradition. 
The  accused  must  have  been  physically  present  in  the  State  in 
which  it  is  alleged  the  crime  was  committed  at  the  time  when  it  was 
committed  in  order  to  make  him  by  his  subsequent  departure 
from  that  State  a  fugitive  from  justice,^  but  he  will  not  be  dis- 
charged on  habeas  corpus  when  there  is  merely  contradictory  evi- 
dence as  to  his  presence  or  absence,  since  habeas  corpus  is  not  the 
proper  proceeding  to  try  the  question  of  alibi. ^  The  provisions 
of  this  section  expressly  or  by  necessary  implication  prohibit 
the  surrender  of  a  person  in  one  State  for  removal  as  a  fugitive 
to  another  where  it  clearly  appears  that  the  person  was  not  and 
could  not  have  been  a  fugitive  from  the  justice  of  the  demanding 

2  Biddinger    v.    Commissioner    of  §  632.  ^  Ex    parte    Montgomery, 

Police   of   the   City   of   New   York,  244    Fed.    967;     Hyatt    v.    People, 

supra.  ex  rel.  Corkran,   188  U.  S.  691,  47 

§  630.   '  Hughes    v.    Pflanz,     138  L.  ed.  657,  23  S.  C.  456 ;    Ex  parte 

Fed.    980,   71    C.    C.    A.    234    (6th  Hoffstot,  180  Fed.  240,  242,  Affirmed 

Cir.).  in  218  U.  S.  665,  54  L.  ed.  1201,  31 

§631.    'Ex    parte    Graham,    216  S.  C.  222;    Ex  parte  Graham,  216 

Fed.  813;    Strassheim  v.  Daily,  221  Fed.   813;    Munsey  v.   Clough,   196 

U.  S.  280,  285,   55  L.  ed.  735,  31,  U.  S.  364,  49  L.  ed.  515,  25  S.  C.  282. 

S.  C.  558.  *  Munsey  v.  Clough,  supra. 
494 


Chap.  XLV]        WRONGFULLY   ACQUIRED   JURISDICTION  [§  634 

State.^  A  resident  of  New  York,  indicted  in  Pennsylvania  for 
conspiracy  to  bribe  members  of  the  Pittsburg  City  Council,  could 
not  be  extradited  in  the  absence  of  some  proof  that  he  had  been 
physically  present  in  Pennsylvania  when  the  offense  was  com- 
mitted.^ The  Supreme  Court  in  habeas  corpus  proceedings  will 
not  assume,  where  there  is  no  evidence  in  the  record  that  the 
person  held  for  surrender  had  not  been  in  the  demanding  State, 
that  the  rendition  order  conflicted  with  Section  5278  in  that  respect 
because  the  record  did  show  that  such  person  had  come  into  the 
surrendering  State  from  a  State  other  than  the  one  demanding.^ 

§  633.  Involuntajry  Presence  in  State. 

The  exclusive  character  of  the  section  does  not  relate  to  the 
rendition  between  States  of  criminals  found  in,  but  who  had  not 
fled  to,  the  surrendering  State  but  had  been  involuntarily  brought 
therein.^ 

§  634.   Wrongfully  Acquired  Jurisdiction. 

Article  IV,  §  2,  subd.  2  of  the  Constitution  and  this  section 
place  no  limitation  on  the  power  of  States  to  arrest  in  advance  of 
extradition  proceedings.  They  deal  merely  with  the  conditions 
under  which  one  State  may  demand  rendition  from  another  and 
under  which  the  alleged  fugitive  may  resist  compliance  by  the 
State  upon  which  the  demand  is  made.^  This  provision  is  so 
narrow  in  scope  that  if  the  removal  is  actually  effected  without  the 
interposition  of  the  State's  executives  —  though  it  be  by  kidnapping 
and  breach  of  the  peace  —  the  Federal  law  affords  no  redress,  and 
interposes  no  obstacle  to  the  prosecution  of  the  alleged  fugitive 
by  the  State  which  has  by  wrongful  act  acquired  jurisdiction  over 
him.^ 

3  Innes  v.  Tobin,   240  U.  S.  127,  §  633.   ^  Innes   v.   Tobin,   240   U. 

60  L.  ed.  562,  36  S.  C.  290 ;  Ex  parte  S.  127,  60  L.  ed.  562,  36  S.  C.  290. 
Reggel,  114  U.  S.  642,  29  L.  ed.  250,  §  634.    i  Burton     v.     New     York 

5  S.  C.  1148;    Roberts  v.  Reilly,  116  Central  &  Hudson  River  R.  R.  Co., 

U.  S.  80,  29  L.  ed.  544,  6  S.  C.  291 ;  245  U.  S.  315,  62  L.  ed.  314,  38  S.  C. 

Hyatt   V.    People    ex   rel.    Corkran,  108. 

supra;    Bassing  v.  Cady,  208  U.  S.  ^  gurton    v.    New    York    Central 

386,  392,  52  L.  ed.  540,  28  S.  C.  392.  &  Hudson  River  R.  R.  Co.,  supra; 

*  Ex  parte  Hoflfstot,  supra.  Mahon   v.    Justice,    127    U.    S.    700, 

*  Innes  v.  Tobin,  supra.  32  L.  ed.  283,  8  S.  C.  1204. 

495 


§  635]  EXTRADITION        ,  [Chap.  XLV 

§  635.  Proof  before  Governor. 

The  question  whether  the  accused  is  a  fugitive  from  justice  is 
a  question  of  fact,  which  the  governor,  upon  whom  the  demand  is 
made,  must  decide  upon  such  evidence  as  is  satisfactory  to  him. 
Strict  common  law  evidence  is  not  necessary.^  Upon  the  exec- 
utive of  the  State  in  which  the  accused  is  found  rests  the  respon- 
sibility of  determining,  in  some  legal  mode,  whether  he  is  a  fugitive 
from  justice.  But  he  is  not  required  to  surrender  the  accused 
unless  it  is  shown  to  him  by  satisfactory  proof  that  he  is  a  fugitive 
from  justice.-  It  is  for  the  executive  of  the  State  upon  which  a 
demand  is  made  to  determine  whether  he  will  regard  the  requisition 
papers  as  sufficient  proof  that  the  accused  has  been  charged  with 
crime  in,  and  is  a  fugitive  from  justice  from  the  demanding  State,  or 
whether  he  will  demand  further  proof .^  There  must  be  competent 
evidence  of  the  fact  of  flight  from  the  demanding  State,  since  that 
fact  lies  at  the  foundation  of  the  right  to  issue  a  warrant  of  extradi- 
tion. The  certificate  of  the  governor  of  the  demanding  State  is  no 
evidence  of  the  fact."*  One  arrested  and  held  as  a  fugitive  from  jus- 
tice is  entitled,  upon  habeas  corpus,  to  question  the  lawfulness  of 
his  arrest  and  imprisonment,  showing  by  competent  evidence  that  he 
was  not  a  fugitive  from  justice,  and  so  overcoming  the  presumption 
to  the  contrary  arising  from  the  face  of  an  extradition  warrant.^ 

§  636.   Sufficiency  of  Requisition  Papers. 

Unless  the  requisition  papers  do  not  comply  with  the  statutory 
requirements  in  substantial  and  important  particulars  the  court 
will  not  interfere  with  the  removal  on  habeas  corpus,  where  they 
have  been  accepted  by  the  governor  of  the  surrendering  state  as 
sufficient.^  But  the  mere  recital,  in  requisition  papers,  that  an 
indictment  duly  authenticated  is  annexed  is  of  no  avail  if  in  fact 
no  indictment  is  attached.^ 

§  635.    1  Munsey   v.    Clough,    196  Fed.  Cas.   No.  7125 ;   State  of  Ten- 

U.   S.   3G4,   372,   49  L.   ed.   515,   25  nessee  v.  Jackson,  36  Fed.  258. 

S.   C.   282;    Roberts  v.   Reilly,    116  ^  People    ex    rel.     McNichols    v. 

U.  S.  80,  29  L.  cd.  544,  6  S.  C.  291.  Pease,  207  U.  S.  100,  109,  52  L.  ed. 

2  Ex  parte  Rcggel,  114  U.  S.  642,  121,  28  S.  C.  58. 

29L.  ed.  2.'')0,  5S.  C.  1148.  §  636.   '  Ex    parte     Chung     Kin 

'  Marbles  ;;.  Crcecy,  215  U.  S.  63,  Tow,  218  Fed.  185. 

54  L.  ed.  92,  30  S.  C.  32.  2  Ex  parte  Hart,  63  Fed.  249,  11 

<In    re    Jackson,    2     Flij)!).    183,  C.  C.  A.  165  (4th  Cir.). 

496 


Chap.  XLV]  AFFIDAVIT  [§  638 

§  637.  Indictment. 

The  Constitution  does  not  require,  as  an  indispensable  pre- 
requisite to  interstate  rendition,  that  there  should  be  an  indict- 
ment. It  requires  merely  a  charge  of  crime.^  Since  a  charge  is 
sufficient,  an  indictment  which  clearly  describes  the  crime  charged 
is  sufficient,  even  though  it  may  possibly  be  bad  as  a  pleading.^ 
The  indictment  need  show  no  more  than  that  the  accused  was 
substantially  charged  with  crime.^  It  need  not  be  framed  accord- 
ing to  the  technical  rules  of  criminal  pleading,  if  it  conforms 
substantially  to  the  laws  of  the  demanding  State."*  Upon  habeas 
corpus,  the  sufficiency  of  the  indictment,  as  a  matter  of  technical 
pleading,  will  not  be  inquired  into,^  if  it  is  in  substantial  conformity 
with  the  statute  of  the  demanding  State.® 

§638.   Affidavit. 

As  has  been  said,  it  is  not  necessary  that  extradition  proceedings 
under  this  section  be  based  on  indictment ;  a  verffied  complaint  or 
affidavit  charging  a  person  with  an  infamous  crime  is  sufficient.^ 
The  affidavit,  when  this  form  of  evidence  is  adopted,  must  be  so 
explicit  and  certain  that  if  it  were  laid  before  a  magistrate  it  would 
justify  him  in  committing  the  accused.^  Therefore  an  affidavit 
founded  on  information  and  belief  is  not  sufficient.^  When  it 
appears  that  an  affidavit  on  which  the  requisition  is  based  was 
regarded  by  the  executive  authorities  of  the  respective  States 
concerned  as  a  sufficient  basis  for  their  acting,  the  judiciary  will 
not  interfere,  on  habeas  corpus,  and  discharge  the  accused  upon 
technical  grounds,  and  unless  it  be  clear  that  what  was  done  was 

§637.   1  Pierce     v.     Creecy,     210  *  Ex  parte  Reggel,  114  U.  S.  642, 

U.  S.  387,  52  L.  ed.  1113,  28  S.  C.  29  L.  ed.  250,  5  S.  C.  1148. 

714,    719 ;     Reed   v.    United    States,  ^  Reed  v.  United  States,  supra. 

224  Fed.  378,  140  C.  C.  A.  04  (9th  « Pearce  v.  Texas,  155  U.  S.  311, 

Cir.).  39  L.  ed.  164,  15  S.  C.  116. 

2  Pierce  v.  Creecy,  supra;    Strass-  §  638.    ^  In   re   Strauss,    126  Fed. 

heim  v.  Daily,  221  U.  S.  280,  55  L.  327,  63  C.  C.  A.  99  (2d  Cir.). 

ed.  735,  31  S.   C.   558 ;    Munsey  v.  2  Ex  parte  Morgan,  20  Fed.  298 ; 

Clough,  196  U.  S.  364,  49  L.  ed.  515,  Ex  parte  Hart,  63  Fed.  249,  11  C.  C. 

25  S.  C.  282;    Drew  v.  Thaw,  235  A.  165  (4th  Cir.). 

U.  S.  432,  59  L.  ed.  302,  35  S.  C.  137.  ^  Ex  parte  Hart,  supra;   Ex  parte 

'Ex    parte    Grahaiji,     210     Fed.  Morgan,    supra;     Ex    parte    Smith, 

813;    Pierce  v.  Creecy,  supra.  3  McLean  121,  Fed.  Cas.  No.  12968. 

VOL.  1  —  32  497 


§  638]  EXTRADITION  [Chap.  XLV 

in  plain  contravention  of  law.^  The  affidavit  required  in  such 
cases  should  set  forth  the  facts  and  circumstances  relied  on  to 
prove  the  crime,  under  the  oath  or  affirmation  of  some  person 
familiar  with  them.^  Where  the  affidavit  on  which  a  person 
charged,  upon  which  he  has  been  surrendered,  is  false,  he  will  be 
discharged  on  habeas  corjpus.^  Where  a  charge  of  crime  has 
culminated  in  a  conviction,  the  record  of  the  conviction  is  sufficient 
evidence  in  proceedings  for  extradition,  and  the  question  of  the 
sufiiciency  of  the  affidavits  becomes  immaterial^ 

§  639.   Information. 

An  information  is  not  an  equivalent  of  an  Indictment  within 
this  section ;  nor  is  the  verification,  on  belief,  of  an  information.^ 
An  information  verified  by  the  prosecuting  attorney,  who  swears 
that  he  believes  the  contents  thereof  to  be  true,  not  that  they  are 
true,  is  not  such  charging  of  the  commission  of  a  crime  before  a 
magistrate  of  the  State  as  is  contemplated  by  the  statute.  For  the 
purposes  of  an  afiidavit  to  be  used  for  the  arrest  and  removal  of 
fugitives  from  justice,  this  is  not  sufficient.^ 

§  640.   Copy  of  Indictment  or  Affidavit. 

This  section  makes  it  essential  to  the  right  to  arrest  the  alleged 
fugitive  under  a  warrant  of  the  executive  of  the  State  where  the 
alleged  fugitive  is  found  that  such  executive  be  furnished,  before 
issuing  his  warrant,  with  a  copy  of  an  indictment  or  an  affidavit 
before  a  magistrate  in  the  demanding  State  charging  the  fugitive 
with  crime  committed  by  him  in  such  State.^  A  requisition  cannot 
be  denied  when  the  copy  of  the  affidavit  attached  thereto  is  held 
sufficient  by  the  court  of  the  State  where  the  offense  was  com- 
mitted, although  it  would  not  be  held  good  in  the  court  of  the 
State  where  demand  is  made.^    Unless  the  executive  is  furnished 

<  Compton  V.  State  of  Alabama,  §  639.   i  Ex  parte  Hart,  63  Fed. 

214  U.  S.  1,  8,  53  L.  ed.  885,  29  S.  C.  249,  11  C.  C.  A.  165  (4th  Cir.). 

605 ;  Ex  parte  Iloffstot,  180  Fed.  240.  ^  Ibid. 

6  Ex    parte    Hart,    63    Fed.    249,  §  640.   i  Compton  v.  State  of  Ala- 
259,  11  C.  C.  A.  165  (4th  Cir.).  bama,  214  U.  S.  1,  6,  53  L.  ed.  885, 

^  State  of  Tennessee  v.  Jackson,  29  S.  C.  605. 

36  Fed.  258.  ^  Pearce  v.  Texas,  155  U.  S.  311, 

7  Hughes  V.  Pflanz,  138  Fed.  980,  39  L.  ed.  164,  15  S.  C.  116;  Ex  parte 
71  C.  C.  A.  234  (6th  Cir.).  Reggel,  114  U.  S.  642,  29  L.  ed.  250, 

498 


Chap.    XLV]  NECESSITY   FOR   CHARGE  [§  642 

with  a  copy  of  indictment  or  affidavit,  made  as  the  statute  re- 
quires, a  warrant  for  removal  is  void.^ 

§  641.  Magistrate  before  Whom  Affidavit  Made. 

Under  this  section  a  person  may  be  regarded  as  a  magistrate 
before  whom  the  required  affidavit  can  be  made  if  he  is  so  regarded 
under  the  law  of  the  State  where  the  alleged  crime  was  committed.^ 

§  642.  Necessity  for  Charge. 

In  a  proceeding  before  a  magistrate  for  the  arrest  of  a  person 
charged  with  a  crime  committed  in  another  State,  brought  in  the 
State  to  which  he  is  alleged  to  have  fled,  it  must  appear  by  ad- 
missible proof  that  in  the  State  where  the  crime  was  committed  he 
stands  charged  through  indictment  or  affidavit  before  a  magis- 
trate or  by  some  other  equivalent  accusation  sanctioned  by  the 
laws  of  that  State.^  Before  the  governor  of  the  State  upon  which 
the  demand  is  made  can  lawfully  comply  therewith,  it  must  appear 
that  the  person  demanded  is  substantially  charged  with  a  crime 
against  the  laws  of  the  demanding  State.  This  is  always  open  to 
inquiry  on  habeas  corpus.'^  Such  evidence  is  necessary  even  in  the 
absence  of  a  State  statute  requiring  it.^  In  interstate  rendition 
proceedings  courts  will  not  indulge  in  technical  tests  of  the  suffi- 
ciency of  a  charge  where  it  substantially  describes  the  crime,'*  but 
the  courts  must  be  able  to  find  some  appropriate  allegation  and 
evidence  that  a  charge  has  in  reality  been  duly  made  in  the  State 
where  the  crime  is  alleged  to  have  been  committed.^  To  hold 
otherwise  would  open  the  law  to  serious  abuse,  and  render  it  an 
instrument  of  oppression.  These  statutory  provisions  were 
framed  with  reference,  not  only  to  actual  fugitives,  but  also  to 
the  rights,  the  individual  liberty  and  security,  of  innocent  persons.* 

5"S.  C.  1148;  Webb  t;.  York,  79  Fed.  3   Hughes,   23,    25,    Fed.    Gas.    No. 

616,  25  C.  C.  A.  133  (8th  Cir.).  8848. 

3  Ex  parte  Hart,  63  Fed.  249,  11  ^  Roberts  v.  Reilly,  116  U.  S.  80,  29 

C.  C.  A.  165  (4th  Cir.).  L.  ed.  544,  6  S.  C.  291 ;  In  re  Strauss, 

§  641.  1  Compton  v.  State  of  Ala-  126  Fed.  327,  63  C.  C.  A.  99  (2d  Cir.). 

bama,  214  U.  S.  1,  7,  53  L.  ed.  885,  '  Reichman  v.  Harris,  supra. 

29  S.  C.  605.  *  Reichman  v.  Harris,  supra;  Pierce 

§  642.   1  Reichman  v.  Harris,  252  v.  Creecy,  210  U.  S.  387,  401,  52  L. 

Fed.  371,  379,  164  C.  C.  A.  295  (6th  ed.  1113,  28  S.  C.  714. 

Cir.) ;     Ex  parte   Morgan,    20   Fed.  ^  Reichman  v.  Harris,  supra. 

298,  308 ;  Ex  parte  A.  W.  McKean,  ^  Ibid. 

499 


§  642]  EXTRADITION  [Chap.  XLV 

A  warrant  issued  by  a  justice  of  the  peace  for  the  arrest  of  an 
alleged  fugitive,  issued  on  information  on  oath  "  that  the  offense 
of  fugitive  from  justice  has  been  committed,  and  accusing  M.  H. 
thereof",  is  not  fair  and  regular  on  its  face,  but  void,  even  if 
considered  as  including  the  oath,  which  recited  that  the  ac- 
cused had  unlawfully  entered  the  State  a  fugitive  from  justice 
from  Mississippi,  "  where  he  is  charged  with  the  crime  of  mur- 
der", since  it  failed  to  state  how,  or  under  what  competent  of- 
ficial sanction,  the  accused  was  charged  with  crime  in  Missis- 
sippi, in  view  of  the  State  statute  and  Section  5278.^  The  power 
of  the  proper  peace  officer  to  arrest,  without  a  warrant,  a  fugi- 
tive from  justice,  provided  he  has  reasonable  cause  to  be- 
lieve he  has  committed  a  felony,  has  been  declared  in  several 
States.^ 

§  643.   "  Charged  with  Crime." 

The  word  "  charged  "  in  Article  IV,  §  2,  subd.  2,  and  this 
section  appears  to  have  been  used  in  its  broad  signification  to  cover 
any  proceeding  which  a  State  might  see  fit  to  adopt  by  which  a 
formal  accusation  was  made  against  an  alleged  criminal ;  ^  and 
to  include  all  persons  accused  of  crime,  the  charge  continuing  until 
trial  and  acquittal,  or,  if  convicted,  until  the  sentence  has  been 
performed.^  Briefly,  it  has  been  held  to  mean,  charged  in  the 
regular  course  of  judicial  proceedings.^ 

§  644.   "  Treason,  Felony  or  Other  Crime." 
"  Treason,  felony  or  other  crime  "  includes  every  violation  of 
the  criminal  laws  of  the  demanding  State.^ 

^  Reichman  v.  Harris,  supra.  Commonwealth  of  Kentucky  v.  Den- 

8  Union  Pacific  Ry.  Co.  v.  Belek,  nison,  24  How.  (U.  S.)  66,  16  L.  ed. 

211    Fed.    699.     (This    seems    con-  717. 

trary  to  Reichman  v.  Harris  case.)  §  644.    >  Taylor     v.     Taintor,     16 

§  643.   '  Matter    of    Strauss,    197  Wall.  (U.  S.)  366,  375,  21  L.  ed.  287 ; 

U.  S.  324,  331,  49  L.  ed.  774,  25  S.  Commonwealth  of  Kentucky  v.  Den- 

C.  535;    Pierce  v.  Creecy,  210  U.  S.  nison,  24  How.  (U.  S.)  66,  16  L.  ed. 

387,  404,  52  L.  ed.   1113,  28  S.  C.  717;   Lascelles  v.  Georgia,  148  U.  S. 

714.  537,  37  L.  ed.  549,   13  S.  C.  687; 

2  Hughes  V.  Pflanz,  138  Fed.  980,  Ex  parte  Reggel,  114  U.  S.  642,  29 
71  C.  C.  A.  234  (6th  Cir.).  L.  ed.  250.,  5  S.  C.  1148. 

3  Ex  parte  Morgan,  20  Fed.  298 ; 

500 


Chap.  XLV]  PROCEEDINGS  [§  648 

§  645.   "  Certified  as  Authentic." 

By  this  section  the  affidavit  or  indictment  upon  which  a  req- 
uisition is  based  must  be  certified  by  the  governor  or  chief 
executive  as  authentic' 

§  646.   Sufficient  Authentication. 

For  purposes  of  extradition  authentications  required  by  the 
statute  are  sufficient  when  made  by  the  respective  governors. 
Where  affidavits  were  sworn  to  before  the  clerk  of  an  inferior  court 
in  the  demanding  State,  but  the  governor  of  the  State  authenti- 
cated the  affidavits,  they  were  held  sufficiently  authenticated.' 
It  is  sufficient  that  a  governor  in  making  requisition  for  a  fugitive 
from  justice  certify  to  the  indictment  or  affidavit  as  authentic.^ 

§  647.   Accused's  Right  to  Hearing. 

Extradition  proceedings  are  summary  in  character,  and  the 
person  demanded  has  no  constitutional  right  to  be  heard  before 
the  governor.'  The  governor  may  act  on  the  requisition  papers 
in  the  absence  of  the  accused  and  without  previous  notice  to  him.^ 
But  he  plainly  has  a  right  to  be  heard  upon  the  questions  involved 
in  his  extradition.^  Therefore  apparently  his  hearing  must  be 
before  the  court  upon  habeas  corpus  proceedings.* 

§  648.   Proceedings. 

Conspiracy  being  a  continuing  offense,  the  demanding  State  is 
not  bound  in  the  extradition  proceedings  by  the  specific  date 
laid.'  No  obligation  is  imposed  by  the  Constitution  or  laws  of  the 
United  States  on  the  agent  of  a  demanding  State  to  so  time  the 
arrest  of  one  alleged  to  be  a  fugitive  from  justice  and  so  conduct 
his  deportation  from  the  surrendering  State,  as  to  afford  him  a 

§  645.   '  Ex    parte     Morgan,     20  Cir.) ;    Ex  parte   Chung   Kin   Tow, 

Fed.  298.  218  Fed.   185;    Munsey  v.  Clough, 

§  646.   1  Chung  Kin  Tow  v.  Flynn,  196  U.  S.  364,  372,  49  L.  ed.  515, 

218  Fed.  64,  133  C.  C.  A.  666  (1st  25  S.  C.  282. 

Cir.).  2  Marbles  v.  Creecy,  215  U.  S.  63, 

2  Tiberg  v.  Warren,  192  Fed.  458,  68,  54  L.  ed.  92,  30  S.  C.  32. 

465,    112  C.   C.  A.   596   (9th  Cir.);  ^  Robb  y.  Connolly,  111  U.  S.  624, 

Ex  parte  Reggel,  114  U.  S.  642,  29  638,  28  L.  ed.  542,  4  S.  C.  544. 

L.  ed.  250,  5  S.  C.  1148.  <  Ex  parte  Chung  Ivin  Tow,  supra. 

§  647.   1  Reed    v.    United    States,  §  648.   ^  Ex    parte    Montgomery, 

224  Fed.  378,  140  C.  C.  A.  64  (9th  244  Fed.  967. 

501 


§  648]  EXTRADITION  [Chap.  XLV 

convenient  opportunity,  before  some  judicial  tribunal,  sitting  in 
the  latter  State,  upon  habeas  corpus  or  otherwise,  to  test  the  ques- 
tion whether  he  was  a  fugitive  from  justice.^ 

§  649.   Statute  of  Limitations. 

The  statute  of  limitations  is  a  defense,  and  cannot  be  heard 
on  habeas  cor'piis  to  test  the  validity  of  an  arrest  in  extradition, 
but  must  be  heard  and  decided,  at  the  trial,  by  the  courts  of  the 
demanding  State. ^ 

§  650.  Wartant  of  Removal. 

The  governor's  warrant  establishes  a  'prima  facie  case  that  the 
arrest  and  direction  for  surrender  are  lawful  and  valid.  The  burden 
is  upon  the  prisoner  to  show  that  he  is  not  in  fact  a  fugitive  from 
justice,  and  that  burden  requires  evidence  which  is  practically 
conclusive.^  The  governor's  warrant  for  removal  is  sufficient 
until  the  presumption  in  favor  of  its  legality  and  regularity  is 
overthrown  by  contrary  proof  in  a  legal  proceeding  to  review  the 
governor's  action.^  The  governor's  warrant,  however,  is  but 
prima  facie  .sufficient  to  hold  the  accused,  and  it  is  open  to  the 
latter,  in  habeas  corpus  proceedings,  to  show  by  any  conclusive 
evidence  that  the  charge  upon  which  extradition  is  demanded 
assumes  the  absence  of  the  accused  person  from  the  State  at  the 
time  the  crime  was,  if  ever,  committed.^  The  governor's  act 
in  issuing  his  warrant  of  removal  is  not  conclusive,  and  there 

2  Pettibone  v.  Nichols,  203  U.  S.  Fed.  458,  112  C.  C.  A.  596  (9th  Cir.) ; 

192,  51  L.  ed.  148,  27  S.  C.  111.  Eaton  v.  State  of  West  Virginia,  91 

§  649.   1  Biddinger     v.     Commis-  Fed.  760,  34  C.  C.  A.  68  (4th  Cir.) ; 

sioner  of  Police  of  City  of  New  York,  Whitten    v.    Tomlinson,    160    U.    S. 

245  U.  S.  128,  62  L.  ed.  193,  38  S.  231,  40  L.  ed.  406,  16  S.  C.  297. 

C.  41 ;    Reed  v.  United  States,  224  2  Munsey  v.  Clough,  196  U.  S.  364, 

Fed.  378,  140  C.  C.  A.  64  (9th  Cir.) ;  372,  49  L.  ed.   515,  25  S.  C.  282 ; 

Pierce  v.  Creecy,  210  U.  S.  387,  52  Roberts  v.  Reilly,  116  U.  S.  80,  29 

L.  ed.  1113,  28  S.  C.  714.  L.  ed.  544,  6  S.  C.  291;    Hyatt  v. 

§  650.   ^  Ex    parte    Montgomery,  People  ex  rel.   Corkran,    188  U.   S. 

244  Fed.  967;  Reed  t;.  United  States,  691,  47  L.  cd.  657,   23   S.   C.   456. 

224  Fed.  378,  140  C.  C.  A.  64  (9th  ^  Hyatt  v.  People  ex  rel.  Corkran, 

Cir.);    Chung   Kin   Tow   v.   Flynn,  sripra;    In  re   Cook,   49  Fed.   833; 

218  Fed.  64,  133  C.  C.  A.  666  (1st  Marbles   v.   Creecy,   215   U.   S.   63, 

Cir.);    People  ex  rel.  McNichols  v.  54  L.  ed.  92,  30  S.  C.  32;    Bassing 

Pease,  207  U.  S.  100,  52  L.  ed.  121,  v.  Cady,  208  U.  S.  386,  52  L.  ed.  540, 

28  S.  C.  58 ;   Tiberg  v.  Warren,  192  28  S.  C.  392. 
502 


Chap.  XLV]  REVIEW  by  federal  COURT  [§  653 

is  no  presumption  that  he  had  the  necessary  papers,  duly  authen- 
ticated, before  him  when  he  acted.* 

§651.  Bail. 

In  extradition  proceedings  one  charged  with  a  misdemeanor 
only  is  entitled  to  bail  as  a  matter  of  absolute  right,  unless  his 
liberty  under  bail  would  be  a  menace  to  the  community.^ 

§  652.  Trial  for  Other  Offenses. 

The  rule  applicable  in  international  extradition  that  a  person 
extradited  from  a  foreign  country  cannot  be  tried  for  an  offense 
other  than  that  for  which  extradition  was  asked  does  not  apply  to 
interstate  rendition.  The  provision  of  both  the  Constitution 
and  the  statutes  extends  to  all  crimes  and  offenses  punishable  by 
the  laws  of  the  State  where  the  act  is  done.^  The  constitutional 
provision  that  a  person  charged  with  crime  against  the  laws  of  a 
State  and  who  flees  from  its  justice  must  be  delivered  up  on  proper 
demand,  is  sufficiently  comprehensive  to  embrace  any  offense, 
whatever  its  nature,  which  the  State,  consistently  with  the  Con- 
stitution and  laws  of  the  United  States,  may  have  made  a  crime 
against  its  laws.^  And  upon  a  fugitive's  surrender  to  the  State 
demanding  his  return  in  pursuance  of  national  law,  he  may 
there  be  tried  for  any  other  offense  than  that  specified  in  the  req- 
uisition for  his  rendition,  and  in  so  trying  him  against  his  objec- 
tion no  right,  privilege  or  immunity  secured  to  him  by  the  Con- 
stitution and  laws  of  the  United  States  is  thereby  denied.^ 

§  653.  Review  by  Federal  Court. 

The  governor's  act  in  issuing  a  warrant  of  removal  can  be  re- 
viewed on  habeas  corpus,  and,  if  he  has  not  followed  the  directions 
and  observed  the  conditions  of  the  Federal  Constitution  and  laws, 

<  Ex  parte  Hart,  63  Fed.  249,  260,  ^  Appleyard  v.  Massachusetts,  203 

11  C.  C.  A.  165  (4th  Cir.).  U.  S.  222,  227,   51   L.  ed.   161,   27 

§  651.   1  Ex  parte  Thaw,  209  Fed.  S.  C.  122;   Ex  parte  Reggel,  114  U. 

954.  S.  642,  650,  29  L.  ed.  250,  5  S.  C. 

§652.   ilnnes  v.   Tobin,   240  U.  1148;   Commonwealth  of  Kentucky 

S.  127,  60  L.  ed.  562,  36  S.  C.  290;  v.  Dennison,  24  How.  (U.  S.)  66,  69, 

Ex  parte  Reggel,  114  U.  S.  642,  29  16  L.  ed.  717. 

L.  ed.  250,  5  S.  C.  1148;   Kentucky  ^  Lascelles  v.  Georgia,   148  U.  S. 

V.  Dennison,  24  How.  (U.  S.)  66,  101,  537,  37  L.  ed.  549,  13  S.  C.  687. 
16  L.  ed.  717. 

503 


§  653]  EXTRADITION  (Chap.  XLV 

can  be  set  aside  as  void.^  The  court  has  no  jurisdiction  to  pass 
upon  the  question  of  accused's  guilt  or  consider  disputed  questions 
of  fact,^  though  it  may  inquire  whether,  on  the  face  of  the  requisi- 
tion papers,  the  accused  has  been  charged  with  a  crime  in  the 
demanding  State.^ 

§  654.  Identity  of  Accused. 

The  question  of  the  identity  of  the  person  arrested  with  the 
person  described  in  the  governor's  mandate  is  always  open  to 
inquiry  on  habeas  corpus} 

§  655.   Subsequent  Proceedings  in  Courts  of  Demanding  State. 

On  habeas  corpus  the  court  can  assume  that  the  person  sur- 
rendered will  be  legally  tried  and  protected  from  illegal  violence.^ 
On  habeas  corpus  in  extradition  proceedings  the  court  cannot 
speculate  on  what  ought  to  be  the  result  of  a  trial  in  the  place 
where  the  Constitution  provides  for  its  taking  place.^ 

§  656.  Direct  Appeal  to  Supreme  Court. 

The  determination  whether  an  indictment  constitutes  a  charge 
within  the  meaning  of  the  extradition  clause  of  the  Constitution 
involves  its  construction  and  a  direct  appeal  lies  to  the  Supreme 
Court.^ 

§  657.  Rearrest  after  Discharge  on  Habeas  Corpus. 

After  a  discharge  on  habeas  corpus  in  extradition  proceedings, 
the  person  arrested,  if  rearrested  for  extradition  for  the  same 
offense,  may  plead  res  adjudicata;   but  he  is  not  protected  from 

§653.   'Ex  parte  Hart,  63  Fed.  ^  Roberts    v.    Reilly,    supra;     Ex 

249,  260,  11  C.  C.  A.  165  (4th  Cir.) ;  parte  Smith,   3   McLean   121,   Fed. 

Roberts  v.  ReiUy,  116  U.  S.  80,  29  Cas.  No.  12968. 
L.  ed.  544,  6  S.  C.  291 ;    Ex  parte  §  654.   '  In  re  Chung  Kin  Tow, 

Morgan,    20    Fed.    298 ;     Ex  parte  218  Fed.  185 ;    In  re  White,  55  Fed. 

Brown,  28  Fed.  653.  54,  5  C.  C.  A.  29  (2d  Cir.). 

2  In  re  Strauss,  126  Fed.  327,  63  §  655.    »  Marbles    v.    Creecy,    215 

C.   C.   A.   99    (2d   Cir.) ;     Bruce   v.  U.  S.  63,  54  L.  ed.  92,  30  S.  C.  32. 
Rayner,  124  Fed.  481,  62  C.  C.  A.  2  Drew  v.  Thaw,  235  U.  S.  432, 

501   (4th  Cir.) ;    Ex  parte  Dawson,  59  L.  ed.  302,  35  S.  C.  137. 
83  Fed.  300,  28  C.  C.  A.  681   (8th  §  656.   '  Pierce    v.     Creecy,     210 

Cir.) ;   In  re  White,  55  Fed.  54,  5  C.  U.  S.  387,  52  L.  ed.  1113,  28  S.  C. 

C.  A.  29  (2d  Cir.).  714. 
504 


Chap.  XLV]  FUGITIVES   FROM   JUSTICE  [§  661 

rearrest  if  the  discharge  was  on  technical  grounds  of  defective 
requisition  papers,  which  can  be  remedied.^ 

§  65S.   Prior  Right  of  Surrendering  State. 

If  the  laws  of  the  State  on  which  demand  is  made  have  been  put 
in  force  against  the  fugitive,  and  he  is  imprisoned  there,  the 
demands  of  these  laws  may  first  be  satisfied,  though  this  right  may 
be  waived.^ 

§  659.   Penalty  for  Resisting  Agent. 

"  Any  agent  so  appointed  who  receives  the  fugitive  into  his 
custody  shall  be  empowered  to  transport  him  to  the  State  or 
Territory  from  which  he  has  fled.  And  every  person,  who,  by 
force,  sets  at  liberty  or  rescues  the  fugitive  from  such  agent  while 
so  transporting  him,  shall  be  fined  not  more  than  five  hundred 
dollars  or  imprisoned  not  more  than  one  year."  ^ 

§  660.  Agent  to  Receive  Accused. 

An  agent  appointed  by  the  demanding  State  to  receive  the  ac- 
cused from  the  State  surrendering  him  is  not  an  officer  of  the  United 
States.^ 

§  661.  Fugitives  from  Justice  —  Philippine  Islands. 

"  The  provisions  of  sections  fifty-two  hundred  and  seventy-eight 
and  fifty-two  hundred  and  seventy-nine  of  the  Revised  Statutes, 
so  far  as  applicable,  shall  apply  to  the  Philippine  Islands,  which, 
for  the  purposes  of  said  sections,  shall  be  deemed  a  Territory  within 
the  meaning  thereof."  ^ 

§  657.   1  In  re  White,  45  Fed.  237.  §  660.   i  Robb  v.  Connolly,  111  U. 

§  658.    1  Taylor    v.     Taintor,     16  S.  624,  28  L.  ed.  542,  4  S.  C.  544. 

WaU.  (U.  S.)  366,  371,  21  L.  ed.  287.  §  661.   i  Act  of  February  9,  1903, 

§  659.   »  Act  of  February  12,  1793,  c.  529,  §  2,  32  Stat.  L.  807. 
c.  7,  1  Stat.  L.  302. 


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